Beverly Stayart v. Google Incorporated

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3012

B EVERLY S TAYART, a/k/a B EV S TAYART

Plaintiff-Appellant,

v.

G OOGLE INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:10-cv-00336—Lynn Adelman, Judge.

A RGUED M ARCH 27, 2012—D ECIDED M ARCH 6, 2013

Before F LAUM, W ILLIAMS, and T INDER, Circuit Judges.

W ILLIAMS, Circuit Judge. Dissatisfied with the results

of internet searches for her name, Beverly Stayart has

launched a legal campaign against internet search en-

gines. In this, her third lawsuit, she contends that

Google is in violation of Wisconsin misappropriation

laws because a search for “bev stayart” may lead to a

search for “bev stayart levitra,” which in turn may lead

to websites advertising drugs to treat male erectile dys-

2 No. 11-3012

function. The district court dismissed her lawsuit for

failure to state a plausible claim for relief and she appeals.

However, Stayart has not articulated a set of facts that

can plausibly lead to relief under Wisconsin’s misap-

propriation laws because the use she alleges falls with-

in two exceptions: public interest and incidental use. First,

Stayart made the challenged search phrase “bev stayart

levitra” a matter of public interest by suing Yahoo! over it

in 2010. And as a matter of public interest, that phrase

cannot serve as the basis of a misappropriation suit. In

addition, Stayart has not pled any facts showing a sub-

stantial connection between Google’s use of her name

and its efforts to generate advertising revenues, trig-

gering the incidental-use exception to Wisconsin’s mis-

appropriation laws. For these reasons, we affirm.

I. BACKGROUND

Google Inc. is a Delaware corporation with its principal

place of business in California. The company’s internet

search engine, also called “Google,” compiles information

available on the internet into a single database, enabling

users to streamline and expedite searches for online

content. When an internet user enters descriptive words

or phrases into the search engine, Google generates a

list of search results that are relevant to the user’s query.

While the search engine is free to users, Google gen-

erates revenue from its services by offering paid place-

ment advertising on the search results pages.

Appellant Beverly Stayart, an adult citizen of Elkhorn,

Wisconsin, claims that she is widely known on the

No. 11-3012 3

internet as a respected scholar of genealogy and a

“positive and wholesome” leader in the animal rights

movement. She believes that she is the only “Bev Stayart”

or “Beverly Stayart” on the internet, that her name

carries significant commercial value, and that it is a

competitive keyword phrase for internet search engines.

In April 2010, Stayart filed a state-law misappropriation

claim against Google, alleging that the company used

her name without permission to generate financial rev-

enue through online trade and advertising. Specifically,

Stayart alleges that various features of Google’s search

engine violate her right of publicity by using her name

to trigger sponsored links, ads, and related searches to

medications, including Levitra, Cialis, and Viagra, all

of which are trademarks of nationally advertised oral

treatments for male erectile dysfunction.

Stayart directs her allegations at three core features

of Google’s search engine: Google Suggest, AdWords

and Sponsored Links, and Related Searches. Google

Suggest is an automated tool that recommends addi-

tional search queries when a user begins to type descrip-

tive words or phrases into the search engine. These addi-

tional search queries derive from an algorithm that

tracks and analyzes all queries run by internet users.

Google Suggest lists the most popular combination

of terms used by individuals conducting identical

or related search queries. For example, if a user types

“chicago” into Google’s search engine, even before the

user presses “enter,” Google recommends several

searches: “chicago tribune,” “chicago bears,” “chicago

weather,” and “chicago sun times.” One of Stayart’s

4 No. 11-3012

complaints is that when a user enters “bev stayart” into

Google’s search engine, Google Suggest automatically

recommends an additional search for “bev stayart levitra.”

Google’s paid placement advertising program is

called “AdWords.” Under this program, an advertiser

can bid on specific keywords or keyword phrases. When

an internet user conducts a search for one of the key-

words or keyword phrases, Google automatically

embeds up to eleven “sponsored links” to the advertiser’s

website on each search results page. Google earns a fee

each time a user clicks on a sponsored link. Stayart

further complains that a search for “bev stayart levitra”

triggers the display of a Google Sponsored Link for

Levitra on the search results page.

Google’s search results page frequently displays links

to additional search queries related to the one executed

by the user. An internet user can access these “Related

Searches” on the left-hand side of the search page

under “show options” or by clicking on a link that says

“more like this.” On the search results page for the

query “bev stayart levitra,” Google displays links to

additional searches related to “bev stayart” and “Levitra.”

According to Stayart, many of these links lead to even

more Google Sponsored Links for a wider variety of

erectile dysfunction treatments.

Stayart’s complaint alleges that Google violated Wis-

consin Statute § 995.50(2)(b), which protects an indi-

vidual’s right of privacy, by misappropriating her name

to generate financial revenue through online trade

and advertising. She also asserted a common-law misap-

No. 11-3012 5

propriation claim. The district court granted Google’s

motion to dismiss with prejudice, finding that Stayart

failed to state a plausible claim for relief because

Google merely reports the results of its search of pub-

licly available websites. Stayart appeals.

II. ANALYSIS

We review the district court’s decision on a motion

to dismiss for failure to state a claim de novo. Wilson v.

Price, 624 F.3d 389, 391 (7th Cir. 2010).

Wisconsin recognizes a right of privacy, Wis. Stat.

§ 995.50, that includes a prohibition on misappro-

priation, or “[t]he 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 . . . .” Id. § 995.50(2)(b). Wisconsin

common law also prohibits misappropriation. See Hirsch

v. S.C. Johnson & Son, Inc., 280 N.W.2d 129, 134 (Wis. 1979).

We recently explored the history of Wisconsin’s misap-

propriation provision and noted that it was modeled

on New York’s privacy statute. See Bogie v. Rosenberg, ___

F.3d ___, 2013 WL 174113, at *3 (7th Cir. Jan. 17, 2013).

And because Wisconsin’s law “shall be interpreted in

accordance with the developing common law of privacy . . .

with due regard for maintaining freedom of communica-

tion, privately and through the media,” Wis. Stat.

§ 995.50(3), we determined that “sound analysis” of Wis-

consin’s privacy statute “includes consideration of

the developing common law of privacy in Wisconsin,

6 No. 11-3012

as well as in other jurisdictions, especially in New

York.” Bogie, 2013 WL 174113, at *3.

Our analysis of Wisconsin’s misappropriation law

in Bogie led us to affirm Wisconsin’s recognition of

the newsworthiness or public interest exception to its

misappropriation law. Id. at *8; see Rand v. Heart Corp.,

298 N.Y.S.2d 405, 409 (App. Div. 1969), aff’d 257

N.E.2d 895, 896 (N.Y. 1970) (stating that phrases such as

“advertising purposes” and for the “purposes of trade . . .

must be construed narrowly and not used to curtail

the right of free speech, or free press, or to shut off the

publication of matters newsworthy or of public interest,

or to prevent comment on matters in which the public

has an interest or the right to be informed”). In Bogie,

we also concluded that the developing right of privacy

includes an incidental use exception that applies in Wis-

consin. Bogie, 2013 WL 174113, at *9. These exceptions

apply to render Stayart’s misappropriation claims

against interest search engines futile.

“[W]here a matter of legitimate public interest is con-

cerned, no cause of action for invasion of privacy will

lie.” Van Straten v. Milwaukee Journal Newspaper-Publisher,

447 N.W.2d 105, 112 (Wis. Ct. App. 1989). And the ap-

plicability of the public interest exception presents a

question of law. Bogie, 2013 WL 174113, at *8. Courts

broadly define matters of public interest and have

applied the exception to consumer interest articles, scien-

tific interest pieces, political reports, social trends,

movies, and documentaries. Id. (collecting cases); Finger

v. Omni Publ’ns Int’l, Ltd., 566 N.E.2d 141, 144 (N.Y. 1990).

No. 11-3012 7

The search term “bev stayart levitra” is a matter of

public interest primarily because Stayart has made it

one—and, given the current lawsuit, ensures that it

remains so. In January 2010—four months before she

filed this lawsuit—she filed a lawsuit against Yahoo! in

federal court, alleging that its search assist feature sug-

gested the phrase “bev stayart levitra” when she typed

“bev stayart,” in violation of Wisconsin’s misappropriation

law. See Stayart v. Yahoo! Inc., No. 2:10-cv-00043-LA (E.D.

Wis. filed Jan. 19, 2010). In her complaint in the instant

case, Stayart alleges that “Google’s misappropriation of

Bev Stayart’s name and likeness began at least as early

as February 1, 2010 . . . ,” the month after she sued Yahoo!

over the same search phrase. And all the searches she

attaches to her complaint were executed in April 2010.

Court documents, including Stayart’s complaint and

the district court’s 2011 order dismissing that complaint,

are matters of public interest. Cf. In re Cont’l Ill. Sec. Litig.,

732 F.2d 1302, 1314 (7th Cir. 1984) (The public has an

interest in the fairness of courts and judges, and the

public has a right of access, “guaranteed by the first

amendment, to information before the court relating to

matters of public interest.”). It follows that if court docu-

ments warrant the public interest exception, the search

providers and indexes that lead the public to those docu-

ments or that capture key terms related to them are

likewise entitled to that exception. To the extent that

Stayart has or would argue that Google’s profit

motives undermine the reliance on the public interest

argument, the exception applies even when the en-

tities sharing the information do so “largely, and even

8 No. 11-3012

primarily, to make a profit.” Davis v. High Soc’y Magazine,

457 N.Y.S.2d 308, 313 (App. Div. 1982).

The incidental use exception also limits the applica-

tion of Wisconsin’s misappropriation law. Bogie, 2013 WL

174113, at *9. “For use of a person’s name for advertising

or trade purposes to be actionable under Wisconsin

law, ‘there must be a substantial rather than an

incidental connection between the use and the

defendant’s commercial purpose.’ ” Id. (quoting Stayart v.

Yahoo! Inc., 2011 WL 3625242, at *2 (E.D. Wis. Aug. 17,

2011)). Nothing in Stayart’s thirty-page complaint—139

pages with attachments—suggests that the connection

between Stayart’s name and Google’s efforts to generate

revenues through its use is “substantial rather than inci-

dental.” Id. (quotation marks omitted). In fact, Stayart’s

complaint and the hundreds of pages of attachments

and supplemental documents she has filed suggest that

the term “levitra” and not Stayart’s name triggers the

erectile dysfunction ads. But even if Google’s use of

her name were substantial, it would still be entitled to

the public interest exception.

III. CONCLUSION

For the reasons set forth above, we A FFIRM the district

court’s decision granting Google’s motion to dismiss.

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