Aerosmith singer and generally-uber-famous-person Steven Tyler filed a lawsuit Wednesday against anonymous bloggers who allegedly impersonated him and his girlfriend Erin Brady. Tyler's complaint includes claims for false light invasion of privacy, publication of private facts, and misappropriation of likeness (a.k.a. right of publicity). It requests damages and an injunction prohibiting the defendants from further misappropriating Tyler's name or likeness or implying that they speak for him.
The defendants allegedly created a pair of Blogspot blogs that purported to be the personal musings of Tyler and his girlfriend. The blog tylers849021.blogspot.com (now removed, but still accessible via Google Cache) included photos of Tyler along with largely G-rated accounts of Tyler and Brady's relationship. The blogger or bloggers posted under the name "STEVEN" and signed each post "ST." A similar blog -- shelikespurple.blogspot.com (also removed but accessible through Google) -- operated the same way but offered Brady's perspective.
To put it bluntly, Tyler's case has a few flaws. It's curious that Tyler, a Massachusetts resident, chose to sue in California state court without any idea about the residence of the anonymous defendants. The defendants, wherever they are, might have a valid argument that the California court lacks personal jurisdiction over them. But, the court likely won't raise this issue on its own initiative, and Tyler may succeed in uncovering their names from Blogspot before any of them raise this objection.
More importantly, Tyler has a weak case under the alleged facts. I've looked at a good chunk of the disputed blog posts (thanks to Google cache), and frankly there isn't much to support his claims. The blogs read as if Tyler and Brady were two devoted (but boring) lovers who decided to describe the day-to-day banalities of their relationship. A representative post has Tyler leaving the recording studio early to share wine and dinner with Brady, fall asleep on the sand next to her, and otherwise have a clichéd good-ol' time.
California law seems to require something more objectionable than that. Both the false light and private facts claims require the disputed statements to be "offensive." Moreover, a false light claim requires falsity and a publication of private facts claim requires the disclosure of true, but private, facts. So which is it? Are the facts true or false? Further, it's much more difficult to succeed on private facts claim if the statements involved an issue of public concern. Given Tyler's massive popularity, most facts about him are probably of legitimate concern to the public. (On the other hand, it's hard to argue that the public has a legitimate interest in made-up "facts.")
The misappropriation claim looks even more unlikely. Generally speaking, California common law misappropriation requires that a defendant use the plaintiff's name or likeness for commercial gain. It's hard to find any conceivable commercial purpose here: the disputed blogs featured no advertising, promoted no products, and otherwise gave no sign of attempting to profit off of the rock star's name and romantic details. Tyler could argue that the bloggers obtained some legally relevant noncommercial gain or advantage from their statements, but this is a largely untested argument in California -- I couldn't find a single case where a plaintiff argued that a noncommercial gain was sufficient for misappropriation liability.
Finally, even if the courts take a more charitable view of Tyler's claims, he probably won't succeed in winning preliminary and permanent injunctions against the bloggers. California courts on several occasions have denied injunctive relief in privacy and publicity claims, describing them as unconstitutional prior restraints -- though there doesn't seem to be an absolute prohibition (yet). This point may be moot for now, given that the blogs have been taken down already, but it's helpful to know how successful Tyler's questionable claims could be in suppressing speech.
In summary, Steven -- who turned 60 this year -- needs to grow up.
Hat tip to Likelihood of Confusion. For additional coverage, see Reuters, Billboard.biz, THR Esq. You can monitor developments on our database entry, Tyler v. Does.
(Matt C. Sanchez is a third-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)
