Habush v. Cannon
Habush v. Cannon
Opinion of the Court
¶ 1. This appeal concerns the right of privacy, as codified in Wis. Stat. § 995.50(2)(b),
¶ 2. Robert Habush and Daniel Rottier are trial attorneys and shareholders in the firm of Habush Habush & Rottier. It is undisputed that Habush and Rottier are both well-known personal injury trial attorneys and their names have commercial and advertising value. Cannon & Dunphy is a law firm with a specialty in personal injury cases.
¶ 3. Internet search engines like Google, Yahoo!, and Bing produce at least three types of search results for Internet searchers: organic results, advertising results, and sponsored results. Organic results are lists of links to websites that are produced based on algorithms developed by each search engine. Advertising and sponsored results are produced by allowing advertisers to bid on and pay for the use of keyword search terms. When a search engine user enters keywords that have been bid on, lists of links to the websites of successful bidders are displayed in a special position on the user's web browser. "Advertising" results generally appear to the right of the organic search results. "Sponsored" results generally appear above the organic results and are usually set in background shading with the words "sponsored link" or "ad."
¶ 4. Beginning in 2009, Cannon & Dunphy bid on the keyword search terms "Habush" and "Rottier" through the search engines Google, Yahoo!, and Bing. This bidding assured that, in response to an Internet user's search of the terms "Habush" or "Rottier," links to the website of Cannon & Dunphy would appear as the first result above the organic results lists. Under the bidding arrangements, Cannon & Dunphy's successful bids mean that it pays the search engine companies each time an Internet user clicks on Cannon &
¶ 5. Robert Habush and Daniel Rottier sued Cannon & Dunphy, William Cannon, and Patrick Dunphy (collectively "Cannon & Dunphy"). Habush and Rottier alleged that, by bidding on the keyword search terms "Habush" and "Rottier," Cannon & Dunphy used the names for advertising purposes without Habush's and Rottier's written consent in violation of Wis. Stat. § 995.50(2)(b). Habush and Rottier sought equitable relief in the form of an injunction, as well as attorneys' fees, pursuant to § 995.50(l)(a) and (c).
¶ 6. The parties filed cross-motions for summary judgment. The circuit court determined that Habush and Rottier must prove two elements: 1) there was an invasion of privacy under Wis. Stat. § 995.50(2) (b); and 2) that the invasion of privacy was done "unreasonably" within the meaning of § 995.50(1). The circuit court concluded that Habush and Rottier succeeded in establishing the first element, that Cannon & Dunphy used the names Habush and Rottier for the purposes of advertising or trade by bidding on them as keyword search terms, but did not establish the second element, that such an invasion was unreasonable. The court, therefore, granted summary judgment in favor of Cannon & Dunphy. While our analysis differs, we agree with what we understand to be the circuit court's pivotal reasoning — that the use of the names here is
Discussion
¶ 7. Habush and Rottier argue that the undisputed facts show that Cannon & Dunphy violated Wis. Stat. § 995.50(2)(b). We begin with a brief summary of the disputed statutory provisions.
¶ 8. Wisconsin Stat. § 995.50(1) entitles anyone "whose privacy is unreasonably invaded" to equitable relief, compensatory damages, and reasonable attorney fees. Section 995.50(2) contains four alternative ways that a party's privacy might be invaded. The privacy right at issue here is § 995.50(2)(b), which provides:
(2) In this section, "invasion of privacy" means any of the following:
(b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.
¶ 9. Thus, on its face, Wis. Stat. § 995.50(2)(b) requires only proof of the following:
1. "use... of the name, portrait or picture of any living person";
2. "use" that is "for advertising purposes or for purposes of trade"; and
3. "use" without "written consent."
¶ 10. Broadly speaking, the circuit court and Cannon & Dunphy take the position that "unreasonably invaded" is an additional requirement that both limits and defines the reach of § 995.50(2)(b). Habush and Rottier, on the other hand, contend that it would be "nonsensical to engraft... an additional unreasonableness requirement on top of' the requirements already contained in the defined violations in the subsections of § 995.50(2), including the subsection at issue here, § 995.50(2)(b). Habush and Rottier seemingly assume that, if there is no additional "unreasonably invaded" element, it is obvious that Cannon & Dunphy's use of their names is a violation of § 995.50(2)(b). In sum, the circuit court and the parties primarily see this case as turning on whether § 995.50(1), with its "unreasonably invaded" language, adds an additional element to § 995.50(2)(b). In our view, this framing of the issue needlessly complicates resolution of this particular dispute.
¶ 11. As Habush and Rottier point out, § 995.50(2)(b) is modeled after a New York statute that has no "unreasonably invaded" language. Consequently, apart from Habush's and Rottier's explanation as to why we should not read "unreasonably invaded" language as imposing an additional element of proof on a plaintiff suing under § 995.50(2)(b), Habush's and Rottier's argument effectively explains why, in their view, Cannon & Dunphy's keyword bidding constitutes prohibited "use" within the meaning of § 995.50(2)(b). In essence, we agree with Habush and Rottier that this latter topic is the key, but disagree on the coverage of § 995.50(2)(b).
¶ 13. Our reframing of the issue does not prejudice Habush and Rottier. For example, although Habush's and Rottier's "incidental use" argument is placed in the context of a discussion of "unreasonably invaded," the substance of their argument is that we should read "use" in § 995.50(2)(b) broadly. Habush and Rottier write:
The common-law doctrine of "incidental use" prevents the Subsection (2)(b) tort from being applied to minor or trivial uses of another person's name, or in publications with news or other literary or entertainment value, which do not exploit the commercial value associated with a living person's name. The words "unreasonably invaded" should not be construed any broader than necessary to keep these incidental uses from the statute's reach.
The gist of Habush's and Rottier's argument here, and elsewhere, is that use of any type should be covered if such use is an attempt to exploit the value of a name or image. This is an argument we fully address below.
¶ 14. In effect, our approach assumes without deciding that Habush and Rottier are correct that they need not meet an additional "unreasonably invaded" requirement. And, in the context of interpreting the term "use," we address all of Habush's and Rottier's substantive arguments on the coverage of § 995.50(2)(b). Accordingly, from this point forward, we speak in terms of the meaning of "use," and sometimes cast the parties' arguments the same way.
This case presents a question of statutory interpretation, which we review de novo. The purpose of statutory interpretation is to determine what a statute means in order to give the statute its full, proper, and intended effect. "We begin with the statute's language because we assume that the legislature's intent is expressed in the words it used." Generally, language is given its common, ordinary, and accepted meaning. In addition, statutory language is interpreted in the context in which it is used, in relation to the language of surrounding or closely-related statutes, and interpreted to avoid absurd or unreasonable results.
"If the meaning is plain, we ordinarily stop the inquiry." However, if a statute is ambiguous, we examine extrinsic sources, such as legislative history, to ascertain the legislative intent. A statute is ambiguous if "[t]he statute's ability to support two reasonable constructions creates an ambiguity which cannot be*719 resolved through the language of the statute itself. [A] statutory provision is ambiguous if reasonable minds could differ as to its meaning."
Orion Flight Servs., Inc. v. Basler Flight Serv., 2006 WI 51, ¶¶ 16-17, 290 Wis. 2d 421, 714 N.W.2d 130 (citations omitted).
¶ 16. If our statutory interpretation analysis reveals ambiguity because we are presented with competing reasonable interpretations, it is our task to choose the more reasonable interpretation. See, e.g., State v. Dartez, 2007 WI App 126, ¶¶ 15, 16-17, 301 Wis. 2d 499, 731 N.W.2d 340 (choosing the "more reasonable" interpretation of a statute); Abbas v. Palmersheim, 2004 WI App 126, ¶ 24, 275 Wis. 2d 311, 685 N.W.2d 546 (choosing "the most reasonable interpretation" of a statute).
¶ 17. Applying these statutory interpretation rules here, we conclude that the word "use" is ambiguous as applied to the facts in this case because the parties present two competing and reasonable interpretations of "use."
¶ 18. Habush and Rottier promote a reading of the statute that provides broad coverage. They contend that "use" in Wis. Stat. § 995.50(2)(b) covers any kind of use of a name or image if such use takes advantage of the commercial value of a person's identity. In support, Habush and Rottier point to common law indicating that an important purpose of the privacy right codified in § 995.50(2)(b) is the protection of an individual against the exploitation of his or her reputation for the benefit of another. Habush and Rottier rely on the Restatement of Torts, and case law applying the Restatement, for the proposition that any use through
¶ 19. Habush and Rottier argue that the only "uses" not covered by Wis. Stat. § 995.50(2)(b) are uses that are incidental. We understand their argument to be that "use" is not incidental if the use involves an attempt to benefit from the commercial or other value of a person's name or image. According to Habush and Rottier, because Cannon & Dunphy used the names Habush and Rottier in a manner that benefitted Cannon & Dunphy, the law firm used the names within the meaning of § 995.50(2)(b).
¶ 20. We conclude that this broad interpretation of "use" is reasonable because, as Habush and Rottier explain, it comports with an important purpose underlying Wis. Stat. § 995.50(2)(b).
¶ 21. Cannon & Dunphy argues that the legislature intended to cover only "use" that is visible to the public in the sense that the used name or image is "found in or on the defendant's product or solicitation for services" (emphasis in original). Under Cannon & Dunphy's reading of the statute, the law firm's use of the names Habush and Rottier is not a violation because the use is not visible in Cannon & Dunphy's sponsored links or its website. The "use" that Habush
¶ 22. We conclude that Cannon & Dunphy's interpretation is also reasonable because it is consistent with case law on which the statute is based and on case law interpreting statutory language that is comparable for our purposes. In every case brought to our attention by the parties and discovered in the course of our own research, the "use" of the name or image at issue was a visible part of some sort of promotion or product. See, e.g., Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 382, 280 N.W.2d 129 (1979) (nickname "Crazylegs" on shaving gel product); Beverley v. Choices Women's Med. Ctr., Inc., 587 N.E.2d 275, 276-77 (N.Y. 1991) (physician's photo in a calendar promoting a medical center); Spahn v. Julian Messner, Inc., 221 N.E.2d 543, 544 (N.Y. 1966), adhered to on remand and rearg., 233 N.E.2d 840 (N.Y. 1967) (fictionalized biography of plaintiffs life); Flores v. Mosler Safe Co., 164 N.E.2d 853, 854 (N.Y. 1959) (plaintiffs name in a news article
¶ 24. The circuit court concluded that Cannon & Dunphy's use of the names Habush and Rottier is comparable to practices that Habush and Rottier concede are proper. The circuit court's "proximity" examples include: (1) a car dealership that locates across the street from an established car dealership; (2) a business that places advertising billboards next to a competitor's existing billboards; and (3) a lawyer placing a yellow pages ad in proximity to the phone listing of competing lawyers. The circuit court further stated that it was undisputed that Cannon & Dunphy could open a branch office next door to an existing Habush Habush & Rottier branch office. In these instances, the circuit court explained, "[t]he first business owner. . . may have been quite unhappy to see others come to take advantage of his or her success," but there is no violation.
¶ 25. The circuit court's assertion that these examples are not disputed appears to be correct. On appeal, Habush and Rottier do not argue that the court's examples constitute impermissible "use" within the meaning of Wis. Stat. § 995.50(2) (b). Rather,
When someone locates a dealership or a billboard next to a competitor's, he is not using the name of the competitor to achieve that result. He is using property which is open and available to locate a business or place an advertisement.
¶ 26. Thus, we understand Habush and Rottier to be conceding that if Cannon & Dunphy located a new branch office next to an established Habush Habush & Rottier office, to take advantage of the flow of people seeking out Habush Habush & Rottier because of the value of the names Habush and Rottier, the opening of the branch office would not violate § 995.50(2)(b).
¶ 27. We agree with the circuit court, and with Habush's and Rottier's apparent concession, that locating an advertisement or business near an established competitor to take advantage of the flow of potential customers or clients to the established business is not a practice the legislature intended to prohibit by adopting Wis. Stat. § 995.50(2)(b). This strategy undeniably takes advantage of the name of the established business and its ability to draw potential customers, but the strategy does not "use" the name of the business in the same way as putting the name or image of the business in an advertisement or on a product.
¶ 28. Furthermore, we fail to discern a meaningful distinction between competitors simply selecting locations in proximity to each other and using a third party to obtain the same result. As we understand the logic of Habush's and Rottier's position, the difference is
¶ 29. Although the question is a close one, we think the strategy used by Cannon & Dunphy here is akin to locating a new Cannon & Dunphy branch office next to an established Habush Habush & Rottier office when the readily apparent purpose — as with the circuit court's car dealership example — is to take advantage of the flow of people seeking out Habush Habush & Rottier because of the value associated with the names Habush and Rottier.
¶ 30. We do not, however, adopt Cannon & Dunphy's suggestion to exempt all non-visible use from coverage under the statute. There may be variations on non-visible use of a name that we are not able to anticipate. Accordingly, our holding is limited to the Internet keyword search term and results mechanism before us. As to this particular mechanism, we conclude that the more reasonable interpretation of the statute is that it is not the type of "use" the legislature had in mind when it enacted Wis. Stat. § 995.50(2)(b).
Additional Arguments
¶ 31. Habush and Rottier make two additional arguments as to why "use" should be read to include bidding on keyword search terms.
¶ 33. Second, Habush and Rottier argue that we should look to an Israeli court's decision addressing whether a medical company invaded the privacy of a doctor by bidding on his name as a keyword search term, Klein v. Proporzia P.S.C. Ltd., C.A. 48511-07 (Tel Aviv-Jaffa Magistrate Court, Sept. 18, 2011). In Klein, the Israeli court applied a statute prohibiting an "infringement of privacy" resulting from "[t]he use of a person's name, appellation, picture or voice, for profit" to a fact pattern like the one here. Id. at 14. However, as with Habush's and Rottier's comparison with trademark law, we are left wondering whether the law at issue in Klein, and the broader legal context, is suffi
Other Defenses
¶ 34. Cannon & Dunphy presents three alternative arguments that it contends are grounds for dismissing the lawsuit. First, Cannon & Dunphy asserts that the shareholder standing rule prevents Habush and Rottier from seeking relief under Wis. Stat. § 995.50(2)(b). Second, it alleges that Habush and Rot-tier engaged in similar advertising practices and, therefore, the doctrine of unclean hands forecloses their recovery. Finally, Cannon & Dunphy argues that, even if it did violate Habush's and Rottier's right of privacy, Cannon & Dunphy's actions are protected by the First Amendment. Because we conclude that Cannon & Dunphy did not use the names of Habush and Rottier in a manner that violates their right of privacy under § 995.50(2)(b), we need not address these defenses.
Conclusion
¶ 35. Based on the arguments before us and on our own attempt to find helpful authority, we conclude that the more reasonable interpretation of the word "use" in Wis. Stat. § 995.50(2)(b) is that it does not cover bidding on someone's name as a keyword search term. Accordingly, we further conclude that Cannon & Dun
By the Court. — Judgment affirmed.
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
The parties sometimes use the shorthand phrases "the right of privacy" and "the right of publicity" as a reference to the right codified in Wis. Stat. § 995.50(2)(b). This comports with language used by courts addressing comparable statutory and common law rights. See, e.g., Flores v. Mosler Safe Co., 164 N.E.2d 853, 854 (N.Y. 1959) ("the right of privacy"); Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 391, 280 N.W.2d 129 (1979) ("the right of publicity"). Some courts have distinguished between "the right of publicity" (an intellectual property right) and the tort of misappropriation (a privacy right). See, e.g., AFL Philadelphia LLC v. Krause, 639 F. Supp. 2d 512, 530-31 (E.D. Pa. 2009) (discussing the tort of misappropriation of name and the right of publicity as "different, though similar, torts"); 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 28:6 (4th ed. 2012). We choose not to use these shorthand terms because they seem problematic in that they are either not intuitively descriptive ("right of publicity") or somewhat misleading (§ 995.50(2)(b) does not define the "right of privacy," just one of four).
Although Habush Habush & Rottier, S.C., was originally a co-plaintiff, the circuit court dismissed the firm from this action based on the court's determination that only living persons could bring a claim for invasion of privacy, a conclusion not challenged in this appeal.
This approach means that we need not address several arguments specifically directed at the circuit court's reliance on
In their appellate brief-in-chief, Habush and Rottier clarify the "use" that they say violates the statute. After criticizing the circuit court for focusing on the "resulting advertisement [and] its location relative to the web listings for Habush and Rottier," Habush and Rottier state: "But it is not the content of the advertisement itself or its positioning that is at issue here. This claim arises by virtue of the use of Habush's and Rottier's names to cause the Cannon's advertisements to appear within searches for Habush and Rottier." (Emphasis in original.)
We agree with the parties' apparent agreement that such cases, addressing the same or a comparable privacy right and which both predate and post-date the enactment of Wis. Stat. § 995.50, are appropriate extrinsic sources. Our legislature has directed that § 995.50 must be "interpreted in accordance with the developing common law of privacy." Wis. Stat. § 995.50(3). Reliance on New York case law is particularly useful to our analysis because the Wisconsin legislature used New York's privacy statute as a model for § 995.50(2) (b). See Judith Endejan, The Tort of Misappropriation of Name or Likeness Under Wisconsin's New Privacy Law, 1978 Wis. L. Rev. 1029, 1034 n.30, 1041 ("Case law under the New York privacy statute may be particularly useful because subsection (2)(b) was modeled after the New York law." (footnote omitted)); Ditsch v. Finn, 214
We agree with Habush and Rottier that no case appears to have imposed a visibility requirement. On the other hand, we disagree with Habush's and Rottier's assertion that one court has held that use need only be "in connection with" an advertisement or trade purpose, which need not include "display." For this proposition, Habush and Rottier cite School of Visual Arts v. Kuprewicz, 771 N.Y.S.2d 804, 812 (N.Y. Sup. Ct. 2003). Our review of that case discloses that it did not turn on the meaning of use, but rather on the fact that any potential use was not for advertising or trade purposes. Id. The court stated that "there is no allegation" that the plaintiffs name was used "in connection with" the websites in dispute. Id. It is true that the New York court commented that the "use" element is satisfied when a name is used "in connection with" an advertisement, but the court did not purport to address the type of visibility issue we have here. See id.
Similarly, we disagree with a characterization of law made by Cannon & Dunphy. Cannon & Dunphy overstates holdings when it asserts that "[c]ourts considering the right of publicity require that for a name or likeness to be 'used, it must be visible to the public" (emphasis in original). This statement is inaccu
We acknowledge that these examples do not address the requirement that the name or image used be that of a natural person, but that is not the point of the examples. As Habush and Rottier seemingly acknowledge, the point is the propriety of what Habush and Rottier label "proximity advertising" and whether the examples are comparable to the use at issue here.
Our comments on Klein v. Proporzia P.S.C. Ltd., C.A. 48511-07 (Tel Aviv-Jaffa Magistrate Court, Sept. 18, 2011), are based on an English translation version of the opinion found in Habush's and Rottier's appendix. The appendix includes a copy of a document purporting to certify that the translation is accurate. We have not taken steps to independently determine the authenticity of the case or the accuracy of the translation.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.