Wrestler "Pretty Boy" Somers earned his ring name for his curly blonde locks when he appeared in American Wrestling Association ("AWA") events in the 1970s and '80s. He often formed a tag team with "Playboy" Buddy Rose; they were successors, at least in concept and hairstyle, to the famous "Gorgeous George" Wagner. Pretty Boy spent years of his life developing and maintaining the Pretty Boy persona, which is known and loved worldwide by professional wrestling fans. Or so he says, in the complaint he filed in November 2011 against World Wrestling Entertainment ("WWE"). He also names as defendants WWE Chairman and CEO Vincent McMahon, and his wife Linda McMahon, the former CEO of WWE.
In the complaint, filed in Georgia state court in his real name, Douglas Duane Somerson alleges invasion of privacy, unauthorized use of intellectual property, unjust enrichment, and violation of the Georgia Uniform Deceptive Trade Practices Act. Somerson claims that the WWE violated his rights through sales of DVDs containing his likeness, books, dolls and other commercial products, without having obtained the right to do so.
After removing the action to federal court, the WWE and the McMahons individually filed motions to dismiss, which are now pending. In their moving papers, the McMahons supply some context to Somerson's claims. According to the McMahons (and the WWE as well, in its concurrently filed moving papers) while Somerson never competed in the WWE, he appeared in AWA events that were recorded. The AWA ultimately folded, and the WWE eventually acquired the recordings, including applicable copyright rights, in 2003.
The McMahons argue that Somerson's complaint is based on the mistaken conclusion that the former wrestler has the sole legal right to exploit his name and likeness. He has failed to claim, they assert, that the recordings in question were made without his knowledge and consent. Taking a swipe at his career, the McMahons assert that Somerson's bouts were included on the DVDs that they admittedly have been distributing because he was in bouts with Shawn Michaels, a former AWA star who became "one of WWE's most popular and celebrated wrestlers." WWE released the DVDs to exploit Michaels' "popularity and success." Ooh, bodyslam.
The McMahons and the WWE also claim that any footage of Somers is used as part of a truthful retelling of past events, which is properly the subject of public interest and fully protected by the First Amendment; that the privacy and publicity claims made by Somers are preempted by the Copyright Act, and that some of the claims are barred by Georgia’s statute of limitations. The defendants also assert that Somerson’s complaint is deficient under federal pleading standards requiring specificity of claims.
Somerson's reply smacks back with the argument that the assertions of the McMahons and the WWE regarding copyright ownership of the DVDs, as well as other assertions, are unsupported by any evidence.
Developments since the filing of Somerson's lawsuit may not bode well for his ultimate success in the litigation. We previously reported on a similar lawsuit filed in 2010 by Martha Hart, the widow and executor of the estate of WWE wrestler Owen Hart, who died in 1999 in an accident during a WWE event. The Hart litigation also included claims of violation of the right of publicity and unjust enrichment. In a March 28 order, as amended, the court in Hart v. World Wrestling Entertainment, Inc., dismissed Hart's claims against the McMahons individually and dismissed many of the claims against the WWE, including, most notably, the right of publicity and unjust enrichment claims.
We should learn soon if the Somerson versus WWE/McMahon matchup will be a replay of Hart versus WWE/McMahon.