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A member of the West Virginia national guard sued online bookseller Amazon.com, book publisher St. Martin’s Press, photo stock house Getty Images and an online seller of t-shirts for violating his right of privacy and right of publicity by using a photograph of him on the cover of a book titled Killer Elite, a non-fiction work examining U.S. special operations activity, and on t-shirts without his permission.
There is no statutory right of publicity in West Virginia. The court, for the first time, held that a common law right of publicity is cognizable in West Virginia. The court held, however, that the complaint failed to identify the plaintiff as a public figure or even as a soldier, and granted the defendants’ motion to dismiss the right of publicity claim without prejudice, and allowed the plaintiff to amend his complaint to add this element.
Regarding the state law claim of right of privacy, the defendants argued that the plaintiff had failed to allege the elements of false light invasion of privacy and intrusion upon seclusion. The court agreed regarding intrusion upon seclusion, finding that the plaintiff failed to allege how defendants’ use of a picture of him serving in a combat zone could be an intrusion upon seclusion. The court, however, denied defendants’ motion to dismiss the false light claim, finding that a reasonable person could be offended by having his picture placed beneath a title that says Killer Elite. The court also rejected the defendants’ affirmative defenses of their use being protected by the First Amendment as a newsworthy exception or an incidental use. The court also held that factual issues precluded dismissal of the claims against Amazon.com, which had claimed immunity as a “traditional bookseller,” or the online t-shirt seller, which claimed immunity under the Communications Decency Act.