United States District Court, D. Colorado
KRISTINA HILL; BRIAN EDWARDS; and, THOMAS PRIVITERE, Plaintiffs,
PUBLIC ADVOCATE OF THE UNITED STATES; NATIONAL ASSOCIATION FOR GUN RIGHTS; ROCKY MOUNTAIN GUN OWNERS; LUCIUS O'DELL; ANDREW BROWN; and, DUDLEY BROWN, Defendants.
WILEY Y. DANIEL, Senior District Judge.
THIS MATTER is before the Court on defendant, Public Advocate of the United States' Motion To Dismiss Plaintiffs' First Amended Complaint [ECF No. 101] and defendants, National Association for Gun Rights, Rocky Mountain Gun Owners, Lucius O'Dell, Andrew Brown, and Dudley Brown's Motion To Dismiss The First Amended Complaint [ECF No. 106]. For the reasons stated below, the motions are GRANTED IN PART and DENIED IN PART.
On May 29, 2013, plaintiffs, Kristina Hill, Brian Edwards, and Thomas Privitere (collectively "the Plaintiffs") filed their First Amended Complaint [ECF No. 92] asserting a copyright infringement claim pursuant to the Copyright Act, 17 U.S.C. § 101, et seq., against defendants, Public Advocate of the United States ("Public Advocate"), National Association for Gun Rights ("NAGR"), Rocky Mountain Gun Owners ("Rocky Mountain"), Lucius O'Dell, Andrew Brown, and Dudley Brown (collectively "the Defendants"), and asserting a Colorado state law appropriation of name or likeness tort claim against Public Advocate and Rocky Mountain.
Edwards and Privitere are a homosexual, married couple living in West Orange, New Jersey. Hill is Edwards' college friend and a professional wedding photographer. Edwards and Privitere became engaged on December 7, 2009, and were married in a civil ceremony on October 17, 2010. In January 2010, they started a blog to celebrate their engagement and disseminate information regarding their upcoming marriage. In May 2010, Edwards and Privitere hired Hill to take engagement photos. One engagement photo depicts Edwards and Privitere holding hands and kissing each other on the lips in a park next to the East River in New York City ("the photo"). ECF No. 92, p. 3. Edwards and Privitere are in the foreground and in the background the viewer can see the historic Brooklyn Bridge and skyscrapers in downtown/lower Manhattan, New York City, New York. With Hill's permission, Edwards and Privitere posted the photo on their blog.
Public Advocate opposes "[s]ame sex marriage and the furtherance of so called Gay Rights.'" See, About Us, http://www.publicadvocateusa.org/about/. In the Spring of 2012, approximately 3, 000 Colorado residents received a political advertisement in which the portion of the photo depicting Edwards and Privitere kissing was superimposed on a mailer with snow-covered pine trees in the background and a caption reading, "State Senator Jean White's Idea Of Family Values?'" ECF No. 92, p. 4. The mailer refers to Jean White, Republican State Senator for Colorado's 8th District. At the time the mailer was issued, White was in a primary race against another Republican for the 8th District's Senate seat and White had supported a bill that would allow same-sex couples to enter into civil unions. On the back of the mailer, Public Advocate is listed as the sender and the mailer includes Public Advocate's physical address and web address. Around that same time, approximately 4, 400 Colorado residents received a different political advertisement in which the same portion of the photo depicting Edwards and Privitere kissing was superimposed on a mailer with white clouds in the background and a caption reading, "Jeffrey Hare's Vision For Weld County?" ECF No. 92, p. 5. The mailer refers to Jeffrey Hare, who at the time was a Republican candidate for Colorado's House District 48 seat and supported same-sex marriage. As with the mailer regarding Senator Jean White, Public Advocate is listed as the sender and the mailer includes Public Advocate's physical address and web address.
The Plaintiffs allege that while both mailers only list Public Advocate as the sender, the mailers were a joint project between Public Advocate, NAGR, and Rocky Mountain. The Plaintiffs allege that Dudley Brown, Rocky Mountain's Executive Director and NAGR's Executive Vice President, O'Dell, NAGR's Director of Operations, and Andrew Brown, a member of NAGR's Creative Department, created the mailers and coordinated their distribution. The Plaintiffs further allege that: (1) Hill owns a registered copyright for the photo; (2) the Defendants neither requested nor received authorization to use the photo; and, (3) the mailers do not provide a photo credit to Hill. The Plaintiffs argue that the Defendants' actions constitute copyright infringement and unlawful appropriation of Edwards and Privitere's name and likeness.
On June 26, 2013, Public Advocate filed a Motion To Dismiss [ECF No. 101] arguing that: (1) the Free Speech Clause of the First Amendment to the Constitution of the United States bars the Plaintiffs' appropriation of name or likeness tort claim; and, (2) the fair use doctrine bars the Plaintiffs' copyright infringement claim. On July 26, 2013, Andrew and Dudley Brown, NAGR, O'Dell, and Rocky Mountain filed a Motion To Dismiss First Amended Complaint [ECF No. 107] presenting similar arguments and also stating that New Jersey law governs the Plaintiffs' appropriation of name or likeness tort claim.
A. Legal Standard for a Motion to Dismiss Pursuant to FEDERAL RULE of CIVIL PROCEDURE 12(b)(6)
FED. R. CIV. P. 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complain alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2007).
In ruling on a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), I "must accept all the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff.'" David v. City and County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996), cert. denied, 522 S.Ct. 858 (1997) (citations omitted). The plaintiff "must nudge [his] claims across the line from conceivable to plausible.'" Dennis v. Watco Co., Inc., 631 F.3d 1303, 1305 (10th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Conclusory allegations are not sufficient to survive a motion to dismiss. Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009); see also Twombly, 550 U.S. at 546 (2007) (The plaintiff's burden "requires more than labels and conclusion, and a formulaic recitation of the elements of the cause of action will not do"). General allegations "encompass[ing] a wide swath of conduct, much of it innocent" will fail to state a claim. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
B. Plaintiffs' Appropriation of Name or Likeness Tort Claim
The Plaintiffs assert this claim against Public Advocate and Rocky Mountain. Plaintiffs asserted this claim pursuant to Colorado law and Public Advocate couched its opposition to this claim under Colorado law. However, Rocky Mountain argues that New Jersey tort law governs this claim. Because there is dispute as to whether Colorado or New Jersey law applies, it is necessary to undergo a choice of law analysis.
1. Choice of Law
This Court has federal question subject matter jurisdiction over the Plaintiffs' copyright infringement claim under the Copyright Act because it arises "under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. This Court has supplemental subject matter jurisdiction over the Plaintiffs' state law appropriation of name or likeness tort claim because it is "so related" to the copyright infringement claim "that they form part of the same case or controversy..." 28 U.S.C. § 1367(a). When a federal district court exercises supplemental subject matter jurisdiction over a state law claim, it applies the choice of law rules of the forum state. Bancoklahoma Mortg. Corp. v. Capital Title Co., 194 F.3d 1089, 1103 (10th Cir. 1999) (citing Glennon v. Dean Witter Reynolds, Inc., 83 F.3d 132, 136 (6th Cir. 1996)).
The Colorado Supreme Court has stated that the choice of law standard used to determine what state law applies in a multi-state tort action is "the most significant relationship to the occurrence and parties test expressed in Restatement (Second) of the Conflicts of Laws §§ 145, 171 (1971)." AE, Inc. v. Goodyear Tire & Rubber Co., 168 P.3d 507, 508 (Colo. 2007) (en banc). Pursuant to § 145, a court takes into consideration the following factors when determining what state law applies: (1) the place of injury; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation and place of business of the parties; and, (4) the place where the relationship, if any, between the parties is centered. AE, Inc., 168 P.3d at 510.
a. Place of Injury
The Plaintiffs admit that they were injured in New Jersey. ECF No. 109, p. 10, ¶ 4. However, the Plaintiffs state that in this specific context, the fact that they were injured in New Jersey is not dispositive. The Plaintiffs rely on Elvig v. Nintendo of Am., Inc., 696 F.Supp.2d 1207 (D. Colo. Mar. 8, 2010), for the proposition that when the place of injury "is simply fortuitous, having little relation to the occurrence and the parties with respect to the particular issue, the place of injury is not accorded significance." ECF No. 109, p. 10, ¶ 4 (internal quotation marks omitted) (quoting Elvig, 696 F.Supp.2d at 1210-11). Elvig did not involve a privacy tort, as is the case here. ...