Gauck v. Karamian et al

Filing 46

ORDER denying 4 Plainitff's Motion for Preliminary Injunction. Signed by Chief Judge Jon Phipps McCalla on 7/29/11. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
LAUREN LEE GAUCK,
Plaintiff,
v.
HOOMAN KARAMIAN a/k/a CORBIN
GRIMES a/k/a NIK RICHIE, DIRTY
WORLD, LLC d/b/a THEDIRTY.COM
and/or THEDIRTYARMY.COM;
DIRTY, INC.; THE DIRTY, LLC;
DIRTY WORLD ENTERTAINMENT,
LLC; and DIRTY SCOTTSDALE,
LLC;
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 2:11-cv-02346-JPM-tmp

ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Before the Court is Plaintiff Lauren Lee Gauck’s
(“Plaintiff” or “Gauck”) Application for Temporary Restraining
Order and Order to Show Cause (Docket Entry (“D.E.”) 4), filed
May 4, 2011, which the Court construed as a Motion for a
Preliminary Injunction on May 9, 2011 (D.E. 5).

Defendants

Hooman Karamian a/k/a Corbin Grimes a/k/a Nik Richie (“Richie”),
Dirty World, LLC d/b/a TheDirty.com and/or TheDirtyArmy.com
(“Dirty World”) (collectively “Defendants”) responded in
opposition on June 17, 2011.
reply on June 29, 2011.

(D.E. 22.)

(D.E. 31.)

Plaintiff filed a

With leave of the Court,

Defendants filed a sur-reply on July 6, 2011.

(D.E. 34.)

The Court held a preliminary injunction hearing on July
21, 2011.

Present for Plaintiff were C. Barry Ward, Esq. and
1

Richard Townley, Esq.
Esq.

Present for Defendants was Brent Siler,

Plaintiff Lauren Lee Gauck1 was also present.
The Court, having carefully reviewed the submissions of the

parties, and having heard the arguments of counsel at the
hearing, hereby DENIES Plaintiff’s motion for a preliminary
injunction for the reasons stated below.
I. BACKGROUND
The various Defendants named in Plaintiff’s complaint own
and operate the website TheDirty.com.

Founded in 2007 by

current editor-in-chief Richie, the site provides a forum for
users to “submit dirt” on themselves and others, which can
include news, photos, video or text, and to comment on material
submitted by others.
(D.E. 34-1) ¶¶ 2, 7.)

(Aff. of Nik Lamas-Richie (“Richie Aff.”)
According to Defendants, the site is

“devoted to publishing news, gossip, humor, and satirical
commentary about a wide variety of topics . . . .”

(Defs.’

Opp’n to Pl.’s Mot. for Prelim. Inj. (“Defs.’ Resp.”) (D.E. 22)
2.)
Since its inception, TheDirty.com has grown significantly
in its popularity and currently receives an average of 18
million hits per month.

(Richie Aff. ¶ 6.)

In its infancy, the

content of the site was largely created by Richie.

1

(Id. ¶ 7.)

Plaintiff was married following the filing of her complaint.
Plaintiff’s married name is Lauren Lee Gauck Giovanetti.

2

Today, however, the majority of the material appearing on the
site is comprised of submissions uploaded directly to the site
by third party users.

(Id. ¶ 7.)

As of July 2011, the site

contains more than 75,000 unique posts on a wide variety of
topics. (Id. ¶ 8.)
Defendants explain that, although submissions to the site
are generally reviewed and moderated by Richie, user-generated
posts appearing on TheDirty.com are not fact-checked for
accuracy.

(Id. at 2.)

A disclaimer appearing at the bottom of

the site states: “The content that is published contains rumors,
speculation, assumptions, opinions, and factual information.
Postings may contain erroneous or inaccurate information. . . .
The owner of this site does not ensure the accurancy of any
content presented on TheDirty.com.”

See The Dirty,

http://thedirty.com/ (last visited July 22, 2011).
Plaintiff is a television news reporter for Fox 13 News in
Memphis, Tennessee.

(Compl. ¶ 11.)

In or around April 2011,

Plaintiff learned that she was the putative subject of two posts
submitted to TheDirty.com by a third party.

(Compl. ¶¶ 14-16.)

The authors of the posts claimed that Plaintiff used illicit
drugs, was sexually promiscuous, exchanged sexual favors in
return for drugs and money, and assaulted an unknown person.
(Id. ¶¶ 15-16.)

Plaintiff avers that the statements are

“patently false and defamatory.”

(Id. ¶ 17.)
3

The author of the first post, dated April 12, 2011 and
entitled “Chi Town Sloots,” included a photo of Plaintiff with
her friends at the beach wearing bikinis.

(Id. ¶ 14.)

The

author of the second post, dated April 14, 2011 and entitled
“Chicago Girls Need to Be Exposed,” included a photo of
Plaintiff and three friends attending a Chicago Cubs baseball
game.

(Id. ¶ 14.)

In addition, the author of the second post

stated “I am attaching a few pictures for your enjoyment . . .,”
and attached several photos of a woman posing nude, exposing her
buttocks, breasts, and genitalia.

(Id.)

Plaintiff asserts, and

it is uncontroverted, that she is not the woman in the pictures
and does not know the woman actually pictured therein.

(Id.)

As the site’s moderator, Richie often posts short editorial
comments in response to submissions from users, which Richie
characterizes as “humorous and often somewhat negative.”
(Defs.’ Resp. 3.)

In response to the first post, Richie

commented “No, the anger comes from their failure in life, I
think it’s time to switch to a 1 piece ladies.”

(Id. at 3.)

In

response to the second post, Richie commented “Pictures don’t
lie ladies . . . these are the same girls who email me crying
saying they have only slept with one guy and are innocent good
girls. –nik.”

(Id. at 5.)

In his affidavit, Richie states that he did not create or
materially modify any part of either post in question.
4

(Richie

Aff. ¶¶ 12, 15.)

He avers that both the text in the body of the

posts and the title of the posts were created entirely by third
parties.

(Id.)

Further, Richie states that the posts were

published exactly as submitted, without any changes other than
the following modifications made pursuant to the site’s general
policies: (1) Defendants usually attempt to redact profanity,
and in these instances, letters in several words were redacted
and replaced with asterisks; (2) as with all posts submitted by
third parties, Defendants added an introductory statement that
read “THE DIRTY ARMY:” to reflect that the post was submitted to
the site by a third-party user; (3) pursuant to a general policy
not to publish photos containing nudity, all of the nude images
submitted were redacted to cover the bathing suit areas of the
women shown in the photos; and (4) the photos were automatically
watermarked by Defendants’ system with a logo from the site
pursuant to the user’s electronic acceptance of a standard
licensing agreement.

(Id.)

Shortly after learning about the posts, Plaintiff contacted
Defendants via email and requested that the posts be removed.
(Pl.’s Reply 5.)

Though Defendants initially refused, they

removed the posts and photos after being contacted by
Plaintiff’s attorney.

(Id.)

Plaintiff claims, however, that

Richie “intentionally reposted the pictures and/or written
matter pertaining to [Plaintiff] after the commencement of the
5

present suit.”

(Id.)

Richie states that this allegation is

“100% false,” that he has not reposted the photos since they
were removed, and that he does not intend to repost them “as
long as their authenticity remains in dispute.”

(Richie Aff. ¶¶

33-34.)
On May 4, 2011, Plaintiff filed the instant lawsuit
asserting claims for: Count I: Defamation; Count II: Invasion of
Privacy – False Light; Count III: Misappropriation of Name and
Likeness; Count IV: Statutory Misappropriation of Name,
Photograph, and Likeness; Count V: Intentional Infliction of
Emotional Distress; Count VI: Invasion of Privacy – Intrusion
upon Seclusion and Publicity Given to Private Life; Count VII:
Civil Conspiracy; Count VIII: Veil Piercing and Vicarious
Liability; and Count IX: Injunctive Relief.

(See generally

Compl.)
In the instant motion, Plaintiff seeks to enjoin Defendants
from republishing the offensive posts and photographs on
TheDirty.com.2

At the hearing, defense counsel stated that

Defendants had no intention of republishing the posts pertaining
to Plaintiff.

However, the parties were unable to come to an

agreement in this regard.

(See Richie Aff. ¶ 33.)

2

In the material submitted to the Court prior to the hearing,
Plaintiff’s request for injunctive relief was much broader and was based on
her defamation, invasion of privacy, and publicity rights claims. At the
hearing, however, Plaintiff clarified that her request for injunctive relief
was based solely on her publicity rights claim and limited to enjoing
Defendants from republishing the two posts pertaining to Plaintiff.

6

II. STANDARD OF REVIEW
A preliminary injunction is “an extraordinary remedy which
should be granted only if the movant carries his or her burden
of proving that the circumstances clearly demand it.”
Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566,
573 (6th Cir. 2002).

A district court’s determination on

whether to issue a preliminary injunction is within the
discretion of the court. Basicomputer Corp. v. Scott, 973 F.2d
507, 511 (6th Cir. 1992).
When deciding whether to grant preliminary injunctive
relief, a court must consider the following factors:
(1) whether the movant has shown a strong likelihood
of success on the merits; (2) whether the movant will
suffer irreparable harm if the injunction is not
issued; (3) whether the issuance of the injunction
would cause substantial harm to others; and (4)
whether the public interest would be served by issuing
the injunction.
Overstreet, 305 F.3d at 573.

“[T]he four factors are not

prerequisites to be met, but rather must be balanced as part of
a decision to grant or deny injunctive relief.”

Performance

Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1381
(6th Cir. 1995) (citing In re DeLorean Motor Co., 755 F.2d 1223,
1229 (6th Cir. 1985)).
The first factor——the likelihood of success——is the
predominant concern.

“Although no one factor is controlling, a

finding that there is simply no likelihood of success on the
7

merits is usually fatal.”

Gonzales v. National Bd. of Med.

Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000); see also Michigan
State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997)
(“While, as a general matter, none of these four factors are
given controlling weight, a preliminary injunction issued where
there is simply no likelihood of success on the merits must be
reversed.”).
III. ANALYSIS
Plaintiff moves for injunctive relief solely on the basis
of her publicity rights claim.3

Defendants oppose Plaintiff’s

motion, arguing that injunctive relief should be denied because
Plaintiff cannot show a likelihood of success on the merits.4
(Defs.’ Resp. 11, 14-17.)
The Tennessee Legislature codified the right of publicity
in 1984 when it enacted the Tennessee Personal Rights Protection

3

The Court will assume, for purposes of this motion, that Plaintiff’s
publicity rights claim falls within the CDA’s statutory exclusion for claims
that arise from “any law pertaining to intellectual property.” 47 U.S.C. §
230(e)(2).

4

Defendants make the following additional arguments: (1) Plaintiff’s
request is moot to the extent that the posts have already been removed; (2)
prospective injunctive relief is a prior restraint in violation of the First
Amendment; (3) the Communications Decency Act (the “CDA”), 47 U.S.C. § 230,
which provides interactive service providers immunity from liability for any
cause of action that would treat the provider as a publisher of third-party
content, expressly bars injunctive relief in this context; and (4) Plaintiff
is unlikely to succeed on the merits of her publicity rights claim because,
(i) while the CDA exempts federal intellectual property claims from the scope
of its immunity, the exemption does not apply to intellectual property claims
based on state law, and (ii) Defendants can avail themselves of the fair use
defense. (See generally Defs.’ Resp.) The Court need not reach the merits of
these additional arguments, however, because the Court finds that Plaintiff
has failed to demonstrate a likelihood of success on the merits of her
publicity rights claim.

8

Act (“TPRPA”).5

Tenn. Code Ann. § 27-25-1101 et seq. In

pertinent part, the TPRPA provides that:
[a]ny person who knowingly uses or infringes upon the
use of another individual’s name, photograph, or
likeness in any medium, in any manner directed to any
person other than such individual, as an item of
commerce
for
purposes
of
advertising
products,
merchandise, goods, or services, or for purposes of .
. . purchases of products, merchandise, goods, or
services, without such individual’s prior consent, . .
. shall be liable to a civil action.
Tenn. Code Ann. § 27-25-1105(a).

The statute was intended to

“create an inheritable property right for those people who use
their names or likenesses in a commercial manner, such as an
entertainer or sports figure——someone who uses his or her name
for endorsement purposes.”

Apple Corps. Ltd. v. A.D.P.R., Inc.,

843 F. Supp. 342, 348 (M.D. Tenn. 1993) (quoting Senator Kyle,
sponsor of the TPRPA, from the April 5, 1984 audio recording of
the Tennessee legislative session) (internal punctuation
omitted).
5

Tennessee’s common law and statutory rights of publicity are
coextensive and limited to commercial use for purposes of advertising or
soliciting a product or service. Cf. State ex rel. Elvis Presley Intern.
Memorial Foundation v. Crowell, 733 S.W.2d 89, 96 (Tenn. Ct. App. 1987)
(noting that the “General Assembly undertook to [define the parameters of the
right of publicity] when it enacted [the TPRPA]”); Elvis Presley Enters, Inc.
v. Elvisly Yours, Inc., 936 F.2d 889 (6th Cir. 1991) (holding that the
provision of the injunction issued by the district court on the plaintiff’s
common law and statutory rights of publicity, which prohibited the defendants
from using the trademarks “for any purpose whatsoever,” was “too broad
insofar as it cover[ed] more than the unauthorized commercial use or
exploitation of EPE’s rights”); see also Cordell v. Detective Publications,
Inc., 307 F. Supp. 1212, 1217 (E.D. Tenn. 1968), aff’d , 419 F.2d 989 (6th
Cir. 1969) (rejecting the plaintiff’s common law right of publicity claim and
noting that “the charge that the defendant's publication was primarily to
advance the defendant's commercial interests and was for commercial
exploitation does NOT state a cause of action for appropriation.”) (emphasis
in original).

9

Plaintiff argues that, by selectively publishing posts
about Plaintiff based on her status as a television news
reporter, Defendants have exploited Plaintiff’s image and
likeness for commercial gain in violation of her right of
publicity.

(Pl.’s Reply 13-14.)

Plaintiff claims that

Defendants’ unauthorized use falls within the proscription of
the TPRPA because, by using a local news celebrity on the site,
Defendants increased the volume of internet users to the site.
(Id. at 14.)

This increase in traffic, Plaintiff asserts,

consequently increased Defendants’ advertising revenue because
some of the site visitors viewed and clicked on advertisements
and purchased various goods and services.

(Id.) Plaintiff thus

argues that Defendants are appropriating identities as an item
of commerce, and that this appropriation is the source of
revenue supporting their website.

(Id.)

Defendants assert that Plaintiff’s publicity rights claim
fails on its face because Defendants did not use Plaintiff’s
name or likeness for purposes of advertising or soliciting any
goods or services. (Id. at 11.) The Court agrees.
The TPRPA “does not prohibit all unauthorized uses of
another's name or likeness.” Apple Corps., 843 F. Supp. at 347.
(emphasis in original).

Rather, the statute is “narrowly

drawn,” id., “proscribing only the unauthorized use of another’s
name or likeness in advertising.” Id. at 347 n.2.
10

The limited

scope of uses prohibited by the statute was explained in Apple
Corps.

In a Beatles look-alike performance case, the court

granted the plaintiff’s motion for partial summary judgment,
finding that, while the defendants’ advertisements for their
performances did violate the TPRPA, the performances themselves
did not. Id. at 347-49.

Even though the defendants engaged in

the performances as a commercial endeavor, the court reasoned
that defendants’ use of the Beatles’ personas during the
performances and the Beatles logo on the group’s bass drum did
not violate the TPRPA because the statute only forbids use of
name or likeness for the purpose of “advertising” or
“soliciting” purchases of goods or services.

Id.

In this regard, Tennessee’s right of publicity is narrower
than the Restatement approach adopted by other states, which
provides that appropriation applies “when the defendant makes
use of the plaintiff’s name or likeness for his own purposes and
benefit, even though the use is not a commercial one, and even
though the benefit sought to be obtained is not a pecuniary
one.”

Restatement (Second) of Torts § 652C, cmt. b.
Relying on the Restatement, the district court in Faegre &

Benson, LLP v. Purdy, 367 F. Supp. 2d 1238 (D. Minn. 2005),
found that the plaintiff stated a claim against the defendant, a
website operator, for misappropriation based on the operator’s
use of the plaintiff’s name in the body of four website domain
11

names.

Id. at 1248.

The court held that the defendant

“appropriated [the plaintiff’s] name for his own purposes and
benefit——to mislead internet users into visiting [the
defendant’s] website when they are actually seeking [the
plaintiff’s] website” and to “gain[] the benefit of luring the
user to [the defendant’s] site by exploiting [the plaintiff’s]
name.”

Id. at 1248.

By contrast, Tennessee’s right of

publicity is narrower and applies only to an unauthorized use in
advertisements or solicitations. Apple Corps, 843 F. Supp. at
347.
Other cases where courts have found that the unauthorized
use of the plaintiff’s name or image violated his or her right
of publicity are likewise distinguishable from the instant case.
For example, in Coton v. Televised Visual X-Ography, Inc., 740
F. Supp. 2d 1299 (M.D. Fla. 2010), the court held that the
defendant’s placement of the plaintiff’s self-portrait
“prominently on the packaging of the Body Magic DVD for the
purpose of marketing a pornographic movie” without the
plaintiff’s permission was a violation of Florida’s statutory
right of publicity.6

Id. at 1310-11 (citing Fla. Stat. §

6

Florida’s right of publicity statute provides: “No person shall
publish, print, display or otherwise publicly use for trade or for any
commercial or advertising purpose the name, portrait, photograph, or other
likeness of any natural person without the express written or oral consent to
such use given by [such person].” The Coton court noted that Florida’s
statute “is construed as requiring that the unauthorized use of the person’s
image ‘directly promote the product.’” Id. at 1310 (citing Tyne v. Time
Warner Entm’t Co., L.P., 901 So.2d 802, 808 (Fla. 2005)). The court

12

540.08).
Similarly, the court in Doe v. Friendfinder Network, Inc.,
540 F. Supp. 2d 288, (D.N.H. 2008), relied on a leading treatise
and found that Plaintiff had stated a claim for infringement of
her right of publicity against the defendants, operators of
online web communities where members could meet each other
through online personal advertisements.

Id. at 304 (citing J.

Thomas McCarthy, The Rights of Publicity and Privacy, § 3:2 (2d
ed. 2000)).

In Doe, the plaintiff alleged that an unknown

third-party created a profile that included identifiable aspects
of her persona, that the profile was placed on a number of the
defendants’ web communities, and that the defendants then used
portions of the profile in advertisements and “teasers” on other
websites to draw users to the site and to increase the
profitability of their business.

Id.

The court denied the

defendants’ motion to dismiss, finding that the allegations were
sufficient to state a claim for infringement of the plaintiff’s
right of publicity. Id.
Finally, in Bosley v. Wildwett.com, 310 F. Supp. 2d 914
(N.D. Ohio 2004), the district court granted injunctive relief
against the producers/sellers of a wet t-shirt contest videotape

explained, therefore, “that merely including the misappropriated image in a
publication that is sold for profit is insufficient; rather, the harm
emanates from ‘the way that the use associates the person’s [likeness] with
something else.’” Id.

13

based upon the factual finding that defendant prominently
displayed the plaintiff's name, image, and likeness on the cover
of the defendants' video, and that such advertisements were not
merely “incidental to the promotion” of these products.
923.

Id. at

The court emphasized that the defendants made the

editorial choice to make the plaintiff the focus of their
advertisements by prominently displaying the plaintiff on the
videotape package, in advertisements, and on their website.

Id.

In addition, the defendants’ marketing efforts were aimed at
emphasizing the role of the plaintiff——the plaintiff was a local
news anchorwoman and regional celebrity, which fact the video
producers allegedly exploited by marketing the videotape with an
emphasis on the appearance of the “naked anchor woman.”

Id. at

917.
In each of the aforementioned cases, the plaintiffs
demonstrated a causal connection between the defendants’ use of
their persona and a direct, non-incidental benefit to the
defendants from that use.7

By contrast, Plaintiff has not

demonstrated a causal connection in the instant matter between

7

To be sure, the TPRPA is narrower than the right of publicity claims
analyzed in the aforementioned cases. In Coton, Doe, and Bosley, a mere
showing of a causal connection between the unauthorized use and a nonincidental, direct benefit to the defendants was sufficient to state a claim.
Under the TPRPA, however, the causal connection that Plaintiff must show is
the unauthorized use of her name or image in an advertisement or
solicitation. Thus, even if Plaintiff were able to show that Defendants’ use
of her name and image resulted in an increase in visitors to the site or
advertising revenue, it is not entirely clear that she would succeed on her
publicity rights claim.

14

Defendants’ use of her name and image and an increase in
visitors to the site or advertising revenue. Plaintiff has
offered no evidence that Defendants marketed their site by
emphasizing Plaintiff’s appearance on the site, used portions of
the posts in teasers on other sites to draw more visitors,
prominently displayed the posts regarding Plaintiff on the site,
advertised Plaintiff’s appearance in connection with the sale of
any of Defendants’ products, or charged higher premiums to
advertisers for advertising space on the pages pertaining to
Plaintiff.
At the hearing, Defendants acknowledged that the site makes
money, but emphasized that it does not necessarily make money
from the posts pertaining to Plaintiff, which constitute two
posts out of over 75,000 on the site.

Defendants also pointed

out that the offending posts are not used, and were never used,
to advertise TheDirty.com.

Plaintiff offered no evidence to the

contrary.
In her complaint and briefs, Plaintiff has suggested, at
most, a currently unsubstantiated connection between the general
use of celebrity personas on the site and an increase in traffic
and/or advertising revenue.

Plaintiff states that “those posts

pertaining to celebrities’ personal lives are more valuable than
those pertaining to an average person’s because of their
potential to draw a wider audience to [TheDirty.com].”
15

(Pl.’s

Reply 14.)

Plaintiff also alleges Defendants’ advertising

revenue “is believed to be directly related to the volume of
hits on stories, pictures and comments about a specific
individual such as Plaintiff.”

(Id. at 14 n.2.)

However,

Plaintiff’s speculative assertions regarding Defendants’
advertising revenues are insufficient to meet Plaintiff’s burden
of demonstrating that she is entitled to injunctive relief.
The Court finds that Plaintiff has failed to demonstrate a
likelihood of success on the merits of her right of publicity
claim under the TPRPA.

This finding is dispositive of

Plaintiff’s motion for a preliminary injunction.

Gonzales, 225

F.3d at 625 (“[A] finding that there is simply no likelihood of
success on the merits is usually fatal.”).

Accordingly, the

Court finds that Plaintiff has failed to meet her burden of
proving entitlement to preliminary injunctive relief.
III. CONCLUSION
Finding that Plaintiff has failed to establish a likelihood
of success on the merits, Plaintiff’s Motion for Preliminary
Injunction is DENIED.

IT IS SO ORDERED, this 29th day of July, 2011.
s/ JON P. McCALLA
JON P. McCALLA
CHIEF U.S. DISTRICT JUDGE

16