Opposition Brief — Polsby v. Spruill

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| A PPrTLED |

OCT 29 1998

No. 98-524 Via leluiacis

ME COURT, U.S.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1998

M. MAUREEN POLSBY, M.D..,

Petitioner,

Vv.

STEVEN G. SPRUILL, ULDIS KLAVINS,

and THE HEARST CORPORATION

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION

BRUCE W. SANFORD

Counsel of Record

ROBERT D. LYSTAD

DAVID S. WACHEN

BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 861-1500

Counsel for Respondents

QUESTIONS PRESENTED

Whether the Court should review the straightforward

dismissal of Petitioner’s common-law right of publicity claim

premised on settled District of Columbia law, where the

courts below, after considering the undisputed facts, found no

legal basis for her claim.

Whether the unanimous summary affirmance by a

three-judge panel of the United States Court of Appeals for

the District of Columbia Circuit, in accordance with

procedures established by that court and approved of by this

Court, and upon consideration of the submissions of the

parties, constituted sufficient appellate review.

PARTIES TO THE PROCEEDINGS

Petitioner M. Maureen Polsby, M.D. was the plaintiff

in the United States District Court for the District of

Columbia. Dr. Polsby was the appellant in the appeal to the

United States District Court for the District of Columbia

Circuit.

Respondent Steven G. Spruill, defendant and appellee

below, is an author of fourteen works of fiction who wrote

the novel at issue in this case. Mr. Spruill is a citizen of

Virginia. Mr. Spruill is not employed by The Hearst

Corporation.

Respondent Uldis Klavins, defendant and appellee

below, is an artist who created illustrations accompanying the

condensed version of Mr. Spruill’s novel published in Good

Housekeeping magazine and at issue in this case. Mr.

Klavins is a citizen of Connecticut. Mr. Klavins is not

employed by The Hearst Corporation.

Respondent The Hearst Corporation, defendant and

appellee below, is a Delaware corporation with its principal

place of business in New York. At all times relevant to these

proceedings, The Hearst Corporation owned and published

Good Housekeeping.

RULE 29.6 LISTING

Respondent The Hearst Corporation has no parent

companies. It owns a majority interest in Hearst-Argyle

Television, Inc., a publicly held company, but otherwise has

no publicly held, non-wholly owned subsidiaries.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED.......csscsccssssseescsscsseeseeeeeeccccc. i

PARTIES TO THE PROCEEDINGS ...eeeeeeeeeee cece. ii

Sipeiones ob, so... , SORE ii

TABLE OF AUTHORITIES ........cccsccccssssssssscsscsssssssosscs... iv

STATEMENT OF THE CASE.Q0......csccscccccccssseeeeceocccce l

ITO LU anon) 2

Lp .,, ae 3

or UMRMI Sah OO ie 5

il aig ciscincsssacsassrcnicnsansscs.......... 6

REASONS FOR DENYING THE WRIT o.-eeccccosss--- 7

THE DECISION BELOW INVOLVED THE

STRAIGHTFORWARD APPLICATION OF SETTLED

DISTRICT OF COLUMBIA LAW TO PETITIONER'S

COMMON-LAW CLAIMS ........ccccccccccssecccccseoececcccs 7

A. The District Court Properly Applied Controlling

District of Columbia Law in Disposing of

Polsby’s Right of Publicity Claim. ..0................... 8

B. The Court of Appeals Gave Petitioner Sufficient

PAPO VIEW. nisl onc ocecmscesc 12

ssp eos catennc e h ATTS A 18

TABLE OF AUTHORITIES

CASES

Abney v. United States,

Sg gg NE ee nn NEE eel 12

Alexander v. Runyon,

No. 92-5453, 1993 WL 190958

CI. Sis HE tly BOP EE eiClpniehitticbi ced irieciviones 15

Anchorage-Hynning & Co. v. Moringiello,

PE Se I acs GAs SUMED ehimtsesiarcsncissnsvicesions 17

Barnako v. Foto Kirsch, Ltd.,

No. 86-1700, 1987 WL 10230

Pa Ms: A BONETED -wcesniinsesseesesncteapsnaves 11, 12, 7

Brown v. Twentieth Century-Fox Film Corp.,

SS FE TEBE Cai ters Ges ROD wikasacenvscesensonicanssesens 17

Carson v. Here’s Johnny Portable Toilets, Inc.,

698 F.2d 831, 836-37 (6th Cir. 1983) ............000 12

Covington & Burling v. Food & Nutrition Service,

No. 92-5398, 1993 WL 185239

Cin, Nee, MI POE seteNtatiiclasensadgieanecrncceseres 16

Cowhig v. United States,

No. 98-5116, 1998 WL 568678

CE Soe. I, ae SD Witness cinitisenstiiscecensias 15

Doe v. Roe,

638 So. 2d $26 (Ala. 1994) ......cc.ccssrccsssocsescsesseseces 10

Erie R.R. Co. v. Tompkins,

aT Ee re CAE, Sebsiddeesssbnshicisateviinistamnictealaneniahenin 17

Furman v. United States,

720 F.2d 263 (2d Cir. AEE Saar eee 16

Haelen Labs., Inc. v. Topps Chewing Gum, Inc.,

202 F.2d 866 (2d Cir.), cert. denied

Pe CN IED scechcssnsicsnerceccnccecrecceresessesecees. 17

Hicks v. Casablanca Records, ;

464 F. Supp. 426 (S.D.N.Y. | Eee me ek 9

In re Woods,

Pam We CR i sc 13

Lane v. Random House, Inc.,

23 Media L. Rep. (BNA) 1385

RR UID edi etabiatibe oo 8,11,17

Lego v. Twomey,

seit’ ote ih <¢ f | eC nC ee 13

Martin-Trigona v. Smith,

FEB FBO WAZ COL. 1963) once cecesseceeecereseseeecs cs... 15

Matthews v. Wozencraft,

15 F.3d 432 (Sth Cir. 1994) o.oo. 8,9, 11, 12

Metro Chevrolet, Inc. v. Union de Ti ronquistas,

S35 F.2d 3 (Ist Cir. 1987) ........<:.cece.c.c...-. 13, 14, 15

Morgan v. United States,

801 F.2d 445 (D.C. Cir. 1986),

cert. denied, 480 U.S. 911 (1987) .....cccecccccccscsseoeee. 14

Pearce v. E.F. Hutton Group,

664 F. Supp. 1490 (D.D.C. 1987).............. Pa; Td, 17

Polsby v. Mikulski,

No. 97-611 (D.D.C. filed Mar. 28, 1997). ........... 5,6

Polsby v. Shalala,

Civ. No. DKC 88-2344, mem. op.

CED, RE, FA aa 0 PO Pa ker bhaverii ann vinsscssisviscbesccesbencecss 4

Polsby v. Spruill,

No. 96-1641 (TFH), slip op.

CODD. CUP FUG OP oa vcesniccciticscinsici 5, 8,9, 10, 11

Polsby v. Spruill, No. Civ. 96-1641 (TFH),

1997 U.S. Dist. LEXIS 11621

CRs, ie PE acetic sinepn iacuciiadidralipsannnisnsstanncesen 5

Polsby v. St. Martin’s Press, Inc.,

No. 97 Civ. 0690 (MBM)

CS EIN. Fv TIE HM Dy BT Panccesecscccrersneserccsccccsecesee 6

Sindram v. United States,

Nos. 92-5374 & 92-5465, 1993 WL 191794

(DE. Cl. TE Bay AGG Wien dicen 16

Taxpayers Watchdog, Inc. v. Stanley,

SID FB SOO GAL. Cae, TOG FP vsvecesicsceisivciasiseiceres 14

Taylor v. McKeithen,

SPER e UD dev ndan bien esdcviehcchiccindesscndcen 13, 14

Tucker v. Thornburgh,

S27 F.26 L258 GAC Cay 1G9 1) cisvicsesiecceeieccs 13, 16

United States v. Baynes,

Fe ee Re CN Ns BOTT ) visscrnnsssvernesineccenicscoeiens 15

United States v. Glover,

Fk, ame TIL Cie, UGA) oocccccesessrenesscnescescesess 15

Vii

United States v. Pajooh,

143 F.3d 203 (Sth Cir, 1998) ........ccccccccsssocsos........ 16

Valentine v. CBS, Inc.,

698 F.2d 430 (11th Cir. Rae 9,11,15

Vassiliades v. Garfinckel’s,

492 A.2d 580 (D.C. 1985) ooo ceccccccccocccess. 8,9, 11, 12

Walker v. Washington,

627 F.2d 541 (D.C. Cir.), cert. denied,

GED UB. FOG (RGR) aos ceo ccossecsccesesescesees-... 14, 15

Williams v. Jeeps Sales & Serv. Co.,

No. 97-2751, 1998 WL 614438

(4th Cir. Sept. 10, 198) .....cccccsssssssssssssesseseeseeeeeec. 15

STATUTES & RULES

RO CDPB ibis seid isicsbdavsreiveouasorccsece 15

BRITA cscicnsinssssrsrsovovivevrovacanconssnvartcrooreseeeececc 15

SACI STM sss cccsninssssssvessesovsssctecorssereeseonscoeee. 15

4th Cir. R. 27(g) .escccccsssscseessssssssssssssssesseeeeeeeeeecccc. 15

Biba Cir, BR. ATA. ssscsssessseusssseccsssscssssosssssesoeoncccce. 15

POI I inh cenisptivissesnenncosrseesreacacstzes, 15

28 U.S.C. § 46 ...ccssssssssssesssssssssssssssssssesseeseeeeseeseccc 13

28 U.S.C. § 1291 ...ccccccsssssssssssssssssecsssseeeeseeeeeeesccc. 13

viii

BOLL. COB, Ra SF inacececsnbidicisiiiccricraeilinidinddonisend 6, 14

PE Tk A OIE cisicaansnccscnsesisissipeoiisctasinnnnvasbtain’ 6, 14

RESTATEMENT (THIRD) CF UNFAIR COMPETITION

DR, BF niciniadensdeaciacneaniaaniaaataagnine 8

RESTATEMENT (SECOND) OF TORTS § 652C

CRD T EG) cvviiticinstgnerciedaitabiandacicininitiadinnestinnbesiti 8,11, 14

MISCELLANEOUS

Handbook of Practice and Internal Procedures:

United States Court of Appeals for the District

of Columbia Circuit 50 (1997)........cccccccccecseees 14, 15

W. Page Keeton, ef al., Prosser & Keeton on

Torts § 117 at 853 (Sth ed. 1984)... eeeeeeeeeees 9

Warren & Brandeis, The Right to Privacy,

4 HARV. L. RBV. 193, 215 (1890) ......ccrcesccsscrccsees 17

No. 98-524

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

M. MAUREEN POLSBY, M.D.,

Petitioner,

STEVEN G. SPRUILL, ULDIS KLAVINS,

and THE HEARST CORPORATION

Respondents.

BRIEF IN OPPOSITION

Respondents Steven G. Spruill, Uldis Klavins and

The Hearst Corporation respectfully request that the Court

deny this Petition, which seeks nothing more than a

reexamination of the straightforward dismissal of Petitioner

M. Maureen Polsby, M.D.’s common-law right of publicity

claim. On appeal, a unanimous three-judge panel of the

United States Court of Appeals for the District of Columbia

Circuit summarily affirmed the dismissal in accordance with

established procedures of that court, appivved by this Court.

This unremarkable result does not raise any legitimate

constitutional issue or conflict among the circuits, and is in

keeping with the decisions of this Court and the Court of

Appeals of the District of Columbia. In accordance with

Rule 10, the Court should therefore deny the Petition.

STATEMENT OF THE CASE

Dr. Polsby’s lawsuit arises from the publication of Mr.

Spruill’s novel, My Soul to Take, and an adaptation of the

novel in Good Housekeeping magazine (collectively “the

Novel”). My Soul to Take is a medical thriller about successful

surgeon Suzannah Lord, a female Harrison Ford-type who is

unwittingly foisted into fast-paced, life-threatening situations.

The plot includes assassination attempts by rogue CIA

elements, brain implants that give sight to the blind, and

characters who can see the future. Dr. Polsby believes that the

Novel is based on her life, and that Respondents therefore

infringed her right of publicity.' Dr. Polsby’s life bears no

resemblance to the fictional landscape of the Novel. Even if it

did, her claim still fails as a matter of law.

A. My Soul to Take

My Soul to Take was first published in hardcover in

March 1994, and in condensed form in the March 1994 issue of

Good Housekeeping. The Novel comes from the imagination

of Mr. Spruill, an author of fourteen works of fiction spanning

a twenty-year career. For the Good Housekeeping version,

Hearst retained Mr. Klavins, a Connecticut artist, to create

accompanying sketches. Mr. Klavins hired two models

through a Connecticut talent agency to aid his drawing.

The Novel opens with Dr. Lord, a lab assistant at the

National Institutes of Health, immersed in a research study of

the brain’s code for vision. As part of her duties, Dr. Lord

assists Dr. Roland Lancaster in surgically implanting

rnicrochips into the brains of blind volunteers, allowing them to

see. One night at the lab, Dr. Lancaster makes a “pass” at Dr.

Lord that she quickly rebuffs. Ultimately, Dr. Lord’s rejection

of Lancaster’s advances leads to her dismissal from the project.

' In her original lawsuit, Dr. Polsby also sought recovery for false light

invasion of privacy, defamation, and intentional infliction of emotional

distress. Her Petition indicates that she is no longer pursuing these claims,

which were properly dismissed below.

ALA CPOKA BELLU EAP OM

DENG PELL A MEA LAIN * eR

— — J

Five years later, Dr. Lord, who has become a successful

general surgeon, encounters Andrew Dugan, an implant

recipient whose newfound vision allowed him to renew his

career aS an artist. Yet, Dugan begs Lord to remove the

microchip because of a serious side effect that causes him to

have “visions” of the future. This ability to see the future

attracts the interest of a rogue section of the CIA, which,

unbeknownst to Lord, seeks to harness this power to, among

other things, anticipate the actions of foreign enemies.

The CIA operatives, who have begun implanting chips

into the brains of agents, become concerned that Dr. Lord

might interfere. At the Pentagon’s athletic center, Dr. Lord

barely escapes a CIA assassin. While waiting for Dugan at the

National Zoo, she is ambushed and temporarily imprisoned in

the polar bear den.

After Dugan is captured, Dr. Lord sneaks into CIA

headquarters, but is overtaken by the CIA rogues who have

foreseen her arrival. Dr. Lord narrowly escapes, and in the

ensuing chase, drives off the George Washington Parkway.

She flees across the ice-covered Potomac River. Eventually,

she is caught, and readied for her own implant. As she is

wheeled into the operating room, she hops off the gurney,

grabs a bottle of ether, sets the room ablaze and escapes.

With time running out, Dr. Lord enlists the aid of the

Secretary of Defense, narrowly averting a calamity. The CIA

operation is exposed, and Dr. Lord returns to the comforting

arms of her boyfriend, a reporter for the Washington Post.

B. Dr. Polsby

By contrast to Dr. Lord, Dr. Polsby is a disability

claims examiner for the Social Security Administration. In

1983, with three months left in her residency, Dr. Polsby

accepted a position with Dr. Thomas Chase, the Scientific

Director of NIH’s National Institute of Neurological and

Communicative Disorders and Strokes.

Dr. Polsby claims that at a conference in San Diego

before her NIH position began, Dr. Chase lured her to his hotel

room, made sexual advances, and invited her to join him in

Mexico, which she says she declined. Thereafter, she began a

two-year fellowship at NIH where she researched the

connection between clinical depression and various

neurological ailments. Dr. Polsby claims Dr. Chase retaliated

against her for declining his advances by not renewing her

position or affording her the necessary credit for completion

of her residency. She claims to have been unable to secure

another residency, rendering her ineligible for board

certification.

In 1988, Dr. Polsby sued the Department of Health

and Human Services for gender discrimination. Following a

bench trial, United States District Judge Deborah K.

Chasanow found for the government, concluding that:

[Dr. Polsby’s] account of her treatment by [Chase] at

the conference in San Diego simply is fabricated....Not

for a moment do I find [Dr. Polsby’s] account

credible....All in all I simply do not believe that [Chase]

made an unwelcome and inappropriate “pass” at Dr.

Polsby at that or any other time. Unfortunately, I

believe that the incident was concocted in order to give

spice to her later claims that [Chase] treated her

differently than male fellows hired to do research [at

NIH].

Polsby v. Shalala, Civ. No. DKC 88-2344, mem. op. at 7-8 (D.

Md. Mar. 28, 1996) (emphases added).

| OF The Lawsuit

On March 18, 1996, Dr. Polsby sued Respondents in

the Superior Court of the District of Columbia, claiming that

the Novel infringed her right of publicity, cast her in a false

light, defamed her, and intentionally inflicted emotional

distress. Respondents timely removed the case to federal

court. On August 8, 1996, Dr. Polsby’s counsel withdrew

from representation, leaving Dr. Polsby to proceed pro se.

On September 16, 1996, Mr. Klavins, a citizen of

Connecticut with no ties to the District of Columbia, moved

to dismiss for lack of personal jurisdiction. On February 12,

1997, United States District Judge Thomas F. Hogan

dismi°sed him from the case. Polsby v. Spruill, No. 96-1641

(TFH), slip op. (D.D.C. Feb. 12, 1997) (Pet. App. at 22a.).

Also on September 16, 1996, Respondents moved to

dismiss or for summary judgment, asserting that the Novel

was not related to or based on Dr. Polsby’s life story, and that

regardless, Dr. Polsby could not recover as a matter of law.

On August 1, 1997, the district court dismissed Dr. Polsby’s

claim. Polsby v. Spruill, No. Civ. 96-1641 (TFH), 1997 U.S.

Dist. LEXIS 11621 (D.D.C. Aug. 1, 1997) (Pet. App. at 2a).

The court also rejected Dr. Polsby’s request for leave to

amend her Complaint to add a copyright infringement claim,

partly because Dr. Polsby had already filed an identical pro

se copyright infringement lawsuit in the United States

District Court for the Southern District of New York. A

motion to dismiss that case is pending before the Honorable

Michael B. Mukasey.” See Polsby v. St. Martin’s Press, Inc.,

No. 97 Civ. 0690 (MBM) (S.D.N.Y. filed Feb. 3, 1997).

* On March 28, 1997, Dr. Polsby filed yet another pro se action in the

United States District Court for the District of Columbia, this time against

United States Senator Barbara A. Mikulski, Congressman Steny H.

Hoyer, United States Attorney Lynne A. Battaglia, Maryland Court of

(continue)

D. The Appeal

On August 29, 1997, Dr. Polsby noticed an appeal to

the United States Court of Appeals for the D.C. Circuit, and

filed a “Preliminary and Non-Binding Statement” of twenty-

two “issues,” including an unfounded accusation of bias

against Judge Hogan. (See Pet. App. at 33a-34a.)

In accordance with Rule 27 of the Federal Rules of

Appellate Procedure and Circuit Rule 27(g), Respondents

moved for summary affirmance on December 1, 1997. On

March 11, 1998, a unanimous three-judge panel of the D.C.

Circuit summarily affirmed the district court’s dismissal

“substantially for the reasons stated in the district court’s

order” and based “[uJpon consideration of the [parties’

filings].” (Pet. App. at la.) The court found that “[t]he

merits of the parties’ positions are so clear as to warrant

summary action.” (/d.)

On May 27, 1998, the three-judge panel denied Dr.

Polsby’s petition for rehearing, and the active judges of the

D.C. Circuit unanimously declined Dr. Polsby’s suggestion

for rehearing in banc. (Pet. App. at 26a-27a.)

(continued)

Appeals Judge Howard S. Chasanow (husband of U.S. District Judge

Deborah K. Chasanow), Attorney General Janet Reno, and the United

States of America. Dr. Polsby’s eleven-count complaint alleges

violations of the Racketeer-Influenced and Corrupt Organizations Act,

the Civil Rights Act, and other federal statutes, based primarily upon an

alleged conspiracy among the defendants to deprive Dr. Polsby of relief

in her Title VII action before Judge Deborah Chasanow, and to cover up

medical research fraud. A motion to dismiss is pending before United

States District Judge Henry Kennedy. See Polsby v. Mikulski, No. 97-611

(D.D.C. filed Mar. 28, 1997).

REASONS FOR DENYING THE WRIT

THE DECISION BELOW INVOLVED THE

STRAIGHTFORWARD APPLICATION OF SETTLED

DISTRICT OF COLUMBIA LAW TO PETITIONER’S

COMMON-LAW CLAIMS.

Dr. Polsby’s instant Petition is nothing more than an

invitation to revisit the careful and thorough decision of the

district judge, who applied settled District of Columbia law

in disposing of Dr. Polsby’s meritless common-law claims.

In focusing only on the district court’s dismissal of her right

of publicity claim and the D.C. Circuit’s summary affirmance

procedures, Dr. Polsby abandons her dismissed claims for

false light invasion of privacy, defamation, and intentional

infliction of emotional distress, and does not challenge the

dismissal of Mr. Klavins for lack of personal jurisdiction. In

attacking the summary affirmance, Dr. Polsby engages in a

shameless, unsubstantiaied attack on the integrity of the D.C.

Circuit. (Pet. at 4-5.)

In essence, Dr. Polsby simply wants another bite at

the apple. Her Petition fails to identify legitimate

constitutional issues, departure from this Court’s precedents,

conflict with the decisions of the D.C. Court of Appeals, or

conflict among the circuits. In accordance with Supreme

Court Rule 10 and in light of the well-reasoned and correct

decision of the district court below, the Court should deny

the Petiticn.

A. The District Court Properly Applied

Controlling District of Columbia Law in

Disposing of Polsby’s Right of Publicity

Claim.

To recover on her right of publicity claim,’ Dr.

Polsby has the heavy burden of proving that Respondents:

(1) used her name or likeness in the Novel; (2) derived

commercial benefit from her name or likeness, the public

interest in her name or likeness, or any value associated with

her name or likeness; (3) did so for the value connected with

her name or likeness; (4) obtained a benefit from the use of

her name or likeness; and (5) did not merely use her name or

likeness incidentally or for a newsworthy purpose. Lane, 23

Media L. Rep. (BNA) at 1387; Matthews v. Wozencraft, 15

F.3d 432, 437 (Sth Cir. 1994); RESTATEMENT (SECOND) OF

Torts § 652C (1977) (“RESTATEMENT”).* As the district

court held, Dr. Polsby fails to meet any of these

requirements. (Pet. App. 9a-14a.)

The most glaring (and fatal) defects in Dr. Polsby’s

claim are her failure to offer any evidence that Respondents

used her name or likeness, and did so for the commercial

* In the District of Columbia, “right of publicity” and “misappropriation”

are treated as a single cause of action. Lane v. Random House, Inc., 23

Media L. Rep. (BNA) 1385, 1387 (D.D.C. 1995).

* Dr. Polsby’s unsupported contention that the lower courts considered

the “wrong” Restatement is belied by the D.C. Court of Appeals’s

holding in Vassiliades v. Garfinckel’s, adopting the Restatement (Second)

of Torts formulation. See 492 A.2d 580, 587, 592 (D.C. 1985).

Regardless, § 46 of the Restatement (Third) of Unfair Competition, even if

applicable, would not provide Dr. Polsby with a basis for recovery because §

46 applies only to “[o}]ne who appropriates the commercial value of a

person's identity ... for purposes of trade,” which “does not ordinarily

include the use of a person's identity in ... works of fiction ..

RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 46, 47 (emphasis

added).

value associated with her name or likeness. In the District of

Columbia and elsewhere, the right of publicity involves “the

use or benefit of mame or likeness,” not one’s life story.

RESTATEMENT § 652C; see Vassiliades, 492 A.2d at 592;

Matthews, 15 F.3d at 437-38 (noting that “‘likeness’ does not

include general incidents from a person’s life, especially when

fictionalized”); W. Page Keeton, ef al., Prosser & Keeton on

Torts § 117 at 853 (Sth ed. 1984) (“Nor is there any liability

when ... the general outline of [plaintiff's] career, with many

real incidents in [her] life, [is] used as the basis for a figure in a

novel who is still clearly a fictional one.”). Dr. Polsby failed to

offer any evidence that Respondents used her name or likeness.

(See Pet. App. at 10a.)°

Instead, Dr. Polsby contends that My Soul to Take is

based on her life. Apart from the lack of similarity between

the two, “It is simply not enough for a claim of

misappropriation ... to show merely that a character in a

novel is based on a real individual.” (Pet. App. at 14a (citing

Matthews, 15 F.3d at 437).)° Thus, even where an author

admits basing a fictional character upon a real individual or

using an individual’s real name, or where third parties

observe similarities between the individual and a character,

right of publicity claims are routinely dismissed. See, e.g.,

Matthews, 15 F.3d at 437; Valentine v. CBS, Inc., 698 F.2d

430, 433 (11th Cir. 1983); Hicks v. Casablanca Records,

464 F. Supp. 426, 433 (S.D.N.Y. 1978) (finding “right of

publicity does not attach ... where a fictionalized account of

* Dr. Polsby’s unsupported speculation that Mr. Klavins’s sketches

accompanying the Good Housekeeping version of the Novel “seem[]

more likely taken from a photograph of her” (Pet. at 3) is insufficient in

the face of uncontroverted evidence presented to the district court

demonstrating that Mr. Klavins based his drawings on a model who, not

surprisingly, looks identical to the sketches of Dr. Lord in the magazine.

° Dr. Polsby offers no authority for her contention that the right of

publicity protects one’s life story (Pet. at 24), a position contrary to

settled law in the District of Columbia and elsewhere.

an event in the life of a public figure is depicted in a novel ...

and ... it is evident to the public that the events so depicted

are fictitious”); see also Doe v. Roe, 638 So. 2d 826, 829

(Ala. 1994) (rejecting claim “where a fictitious work, using

the names or attributes of real people, is clearly presented as

fiction”).

Nevertheless, Judge Hogan compared the Novel with

Dr. Polsby’s life and found that despite some insignificant,

coincidental similarities, “there are many more differences.”

(Pet. App. at 11a (emphasis added).) The court also noted that

Dr. Polsby failed to provide any evidence to contradict Mr.

Spruill’s sworn affidavit denying any knowledge of Dr. Polsby

or her life story prior to this lawsuit. (Id.)

Regardless, even if Dr. Polsby could show that

Respondents misappropriated her name or likeness, her claim

would still fail because she cannot establish that there was

commercial value associated with her name or likeness, and

Respondents derived commercial benefit from the alleged

’ The many differences include: Polsby was a fellow in neurology studying

connections between movement disorders and depression, while Lord was a

lab assistant training to be a neurosurgeon and involved in microchip

implants to give sight to the blind; Polsby's alleged sexual assault occurred

before she arrived at NIH, while Lord's occurred in an NIH lab; Polsby

completed her two-year fellowship, while Lord was fired from NIH after

eight months; after leaving NIH, Polsby, with no help from Chase, could not

qualify for her medical boards, could not practice medicine and became a

claims examiner at the Social Security Administration, while Lord, with

help from Lancaster, became a successful surgeon; Polsby sued NIH, Lord

did not. Polsby also does not claim to have been chased by CIA agents who

can see the future, or to have survived deadly encounters in the polar bear

den at the National Zoo, at the CIA, on the streets of Langley, on the George

Washington Parkway, on the Potomac River, or in the Pentagon's athletic

club. Polsby also does not claim to have ever set a hospital room on fire,

met the Secretary of Defense or dated a Washington Post reporter. Not

surprisingly, Dr. Polsby’s incorrect contention that the district court’s

opinion contains “numerous factual inaccuracies” (Pet. at 14) fails to

identify even one of the alleged inaccuracies.

use. Matthews, 15 F.3d at 437; Barnako v. Foto Kirsch, Lid.,

No. 86-1700, 1987 WL 10230, at *2 (D.D.C. Apr. 16, 1987)

(holding right of publicity requires that “commercial benefit

was derived from the identity of the plaintiff and the value or

reputation which the public associates with that identity”). The

best she can do is suggest that Respondents derived

commercial benefit simply from the sale of the Novel. (See

Pet. at 24.) The mere fact that Respondents may have

profited from the publication of the Novel is insufficient; Dr.

Polsby cannot prove that Respondents used her name or

likeness “for the express purpose of appropriating the

commercial benefit” associated therewith. (Pet. App. at 9a

(emphasis added)); Vassiliades, 492 A.2d at 592 (“Incidental

use of name or likeness or publication for a purpose other than

taking advantage of a person’s reputation or the value

associated with his name will not result in actionable

appropriation.”) (emphasis added); Barnako, 1987 WL 10230,

at *2 (finding that “it is not enough to demonstrate that a

defendant profited directly from the unauthorized use”);

Pearce v. E.F. Hutton Group, 664 F. Supp. 1490, 1500 (D.D.C.

1987) (noting “[t]he essence of misappropriation” is that the

defendant used the name or likeness “to take advantage of

some value associated with it”); Lane, 23 Media L. Rep.

(BNA) at 1388; Valentine, 698 F.2d at 433 (“Use of a name

is not harmful simply because it is included in a publication

sold for profit.”); RESTATEMENT § 652C cmts. a, b & d

(noting that “[t]he fact that the defendant is engaged in the

business of publication ... out of which he seeks to make a

profit, is not enough”).

District of Columbia courts have uniformly disposed of

right of publicity claims premised on Dr. Polsby’s flawed

* Dr. Polsby ignores the very text of the district court’s opinion when she

incorrectly claims that the court provided no authority for this well-settled

prerequisite to recovery. (Compare Pet. at 16, 24 with Pet. App. at 9a.)

She also fails to offer any legal authority to the contrary.

theory. See Vassiliades, 492 A.2d at 592 (rejecting claim

relating to admitted commercial use of photographs where no

“public interest or other value in [plaintiff's] likeness”);

Barnako, 1997 WL 10230, at *2 (rejecting claim regarding use

of likeness in promotional materials where no evidence that

defendant “derived any commercial benefit from a

misperceived association”); Pearce, 664 F. Supp. at 1500

(rejecting claim where “no evidence that plaintiff's name was

of any particular value or that it was included ... to take

advantage of plaintiff's reputation or the value associated with

his name”); see also Matthews, 15 F.3d at 437-38 (rejecting

claim that defendant’s novel was based on his life story

because the defendant was “not ‘cashing-in’ on goodwill

associated with his name but is simply converting factual

events that happen to include [plaintiff] into fiction”).”

Accordingly, the lower courts properly dismissed Dr.

Polsby’s right of publicity claim.

B. The Court of Appeals Gave Petitioner

Sufficient Appellate Review.

The remainder of Dr. Polsby’s Petition attacks the

adequacy of appellate review by the D.C. Circuit, which

affirmed the district court’s dismissal. Dr. Polsby contends

that the D.C. Circuit’s rejection of her arguments denied her

the “fundamental right” to an appeal. (Pet. at 25.)

It is well-settled, however, that “there is no

constitutional right to an appeal.” Abney v. United States,

431 U.S. 651, 656 (1977). Dr. Polsby’s appeal to the D.C.

* Dr. Polsby’s citation of Carson v. Here's Johnny Portable Toilets, Inc.,

while not controlling in the District of Columbia, is not to the contrary. In

phrase “Here’s Johnny,” and the defendant admitted that had it not been for

the phrase’s association with well-known entertainer Johnny Carson,

defendant would not have used it. See 698 F.2d 831, 836-37 (6th Cir. 1983).

Circuit was pursuant 28 U.S.C. § 1291, which allows for

appeals from final decisions of a district court. Federal law

permits the adjudication of such appeals by panels of three

circuit judges. 28 U.S.C. § 46.'° Thus, on March 11, 1998, a

unanimous three-judge panel of the D.C. Circuit summarily

affirmed the district court's dismissal of Dr. Polsby’s case,

ae a “substantially—for_the-reasons- stated in the district court’s a

order ....” (Pet. App. at la.) The panel’s March 11 order |

explicitly states that the judges, “[u]pon consideration of the”

parties’ filings, held that “[tJhe merits of the parties’

positions are so clear as to warrant summary action.” (Pet.

App. at la (emphasis added).)

Nevertheless, Dr. Polsby challenges the D.C.

Circuit’s use of summary procedures in affirming the district

court’s dismissal. The panel’s summary affirmance,

however, was in keeping with procedures sanctioned by this

Court and established by the D.C. Circuit in accordance with

28 U.S.C. § 2071.

This Court has long-permitted federal courts of

appeals to dispose of cases by summary affirmance. Taylor

v. McKeithen, 407 U.S. 191, 194 n.4 (1972) (noting that “the

courts of appeals should have wide latitude in their decisions

of whether or how to write opinions ... especially ... with

respect to summary affirmances”); Lego v. Twomey, 404

U.S. 477, 482 n.6 (1972) (reviewing court of appeals’s

summary affirmance without comment on its summary

nature). Indeed, at least four current Justices of this Court

have granted motions for summary affirmance at the circuit

court level. See, e.g., Tucker v. Thornburgh, 927 F.2d 1258

(D.C. Cir. 1991) (Ginsburg and Thomas, JJ.); Metro

'° Dr. Polsby cites In re Woods, 143 U.S. 202, 205-06 (1892), for the role

of the courts of appeals in “relieving this court of the oppressive burden

of general litigation.” Ironically, in Woods, this Court denied certiorari

because, as here, the petition sought merely to have this Court determine

whether state law had been properly applied below. Jd.

Chevrolet, Inc. v. Union de Tronquistas, 835 F.2d 3 (1st Cir.

1987) (Breyer, J.); Morgen v. United States, 801 F.2d 445

(D.C. Cir. 1986) (Scalia, J.), cert. denied, 480 U.S. 911

(1987).

As recognized by this Court, summary procedures

have become imperative in managing the courts of appeals’

ever-expanding dockets. Taylor, 407 U.S. at 195-96 (noting

that “courts of appeals ... need the maximum possible

latitude to deal with the ‘flood tide’ of appeals that the ‘ever

growing explosive increase’ of federal judicial business has

produced”) (Rehnquist, J. dissenting). The D.C. Circuit has

recognized that summary disposition can provide “a major

savings of time, effort, and resources for the parties, counsel,

and the Court.” Handbook of Practice and Internal

Procedures: United States Court of Appeals for the District

of Columbia Circuit 50 (1997) (“Handbook”). Indeed, even

Dr. Polsby concedes that summary affirmance is

“appropriate” for “certain types of cases.” (Pet. at 5.)

In accordance with Rule 27(c) of the Federal Rules of

Appellate Procedure, D.C. Circuit Rule 27(g) expressly

provides for the filing of dispositive motions within forty-

five days of the docketing of an appeal as Respondents did

here. Moreover, the D.C. Circuit’s Handbook of Practice

and Internal Procedures states that “[p]arties are particularly

encouraged to file dispositive motions where a sound basis

exists for summary disposition.” Handbook 50 (emphasis

added). The D.C. Circuit has held that summary affirmance

is appropriate where the merits of the parties’ positions are so

clear that “no benefit will be gained from further briefing and

argument.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d

294, 297-98 (D.C. Cir. 1987); Walker v. Washington, 627

F.2d 541, 545 (D.C. Cir.), cert. denied, 449 U.S. 994 (1980);

Handbook 66.

The D.C. Circuit’s disposal of cases by summary

affirmance is hardly new, is appropriate in appeals by pro se

appellants, see, e.g., Martin-Trigona v. Smith, 712 F.2d 1421

(D.C. 1983), Walker, 627 F.2d 541, and is in keeping with

similar procedures in other circuits, a number of which have

explicit rules permitting motions for summary affirmance.

See, e.g., Williams v. Jeeps Sales & Serv. Co., No. 97-2751,

1998 WL 614438, at *2 (4th Cir. Sept. 10, 1998); Cowhig v.

United States, No. 98-5116, 1998 WL 568678 (Fed. Cir.

Aug. 20, 1998); Metro Chevrolet, Inc., 835 F.2d at 4; United

States v. Baynes, 548 F.2d 481 (3d Cir. 1977); 1st Cir. R.

27.1; 2d Cir. R. 27; 3d Cir. R. 27.4; 4th Cir. R. 27(g); 8th Cir.

R. 47A; 9th Cir. R. 3-6. In addition, Dr. Polsby

acknowledges that “[a]ll the circuits allow for summary

affirmance.” (Pet. at 19.)

Nevertheless, she claims that the D.C. Circuit’s use of

summary procedures violated her rights to due process and

equal protection, both in their operation generally and their

application to her appeal in particular. The only “authority”

Dr. Polsby can muster is D.C. Circuit Judge Abner Mikva’s

1984 dissenting opinion in United States v. Glover,

criticizing the court’s procedures at the time for handling

motions for summary affirmance, “especially in criminal

cases.” 731 F.2d 41, 48 (D.C. Cir. 1984) (emphasis added)

(Mikva, J. dissenting). In doing so, Judge Mikva, however,

conceded that “no party has a constitutional right to appellate

process in this court.” Jd at 51. In addition, over the

intervening fourteen years, the D.C. Circuit has addressed his

concerns and modified its internal operating procedures,

including now requiring that dispositive motions be

considered and decided by three-judge panels, as occurred

here. Handbook 56-57. Indeed, since Glover, Judge Mikva

has granted innumerable motions for summary affirmance,

apparently in recognition of the changes in the internal

procedures in which Judge Mikva no doubt participated

given nis service as chief judge of the D.C. Circuit during the

fourteen-year period. See, °.g., Alexander v. Runyon, No. 92-

5453, 1993 WL 190958 (D.C. Cir. May 25, 1993) (Mikva,

C.J., and Wald & Ruth Bader Ginsburg, JJ.); Sindram v.

United States, Nos. 92-5374 & 92-5465, 1993 WL 191794

(D.C. Cir. May 25, 1993) (same); Covington & Burling v.

Food & Nutrition Service, No. 92-5398, 1993 WL 185239

(D.C. Cir. May 20, 1993) (same); Tucker, 927 F.2d 1258

(D.C. Cir. 1991) (Mikva, C.J., and Ruth Bader Ginsburg &

Thomas, JJ.).

Dr. Polsby has failed to offer any legal support for her

challenge to the D.C. Circuit’s well-established summary

procedures or any legitimate basis for assuming that the court

deviated from its established guidelines in adjudicating her

appeal. Instead, she relies on rank speculation that the three

active D.C. Circuit judges, all in good standing, must have

ignored her arguments, contrary to the explicit statement in

the March 11 order that they considered all of the parties’

submissions, which included Dr. Polsby’s laundry list of

twenty-two “issues” for appeal. See Furman v. United

States, 720 F.2d 263, 264-65 (2d Cir. 1983) (“The fact that a

disposition is by informal summary order rather than by

formal published opinion in no way indicates that less than

adequate consideration has been given to the claims raised in

the appeal.”); United States v. Pajooh, 143 F.3d 203, 204

(Sth Cir. 1998) (rejecting argument that summary affirmance

deprived appellant of meaningful review).

In her latest conspiracy theory, Dr. Polsby boldly

assumes that the court’s staff must have subverted the

appellate process in this case in a rant that is not only devoid

of anything resembling evidence, but also an insult and

affront to the judges and staff of that court, of which three

current Justices of this Court used to be members.''! In

addition, it is belied by the refusal of not only the panel but

'' Moreover, Dr. Polsby’s conspiracy theory proves too much since she

cannot show that the clerks and staff of the D.C. Circuit are not involved

in appeals not handled summarily.

p49

’ also every active D.C. Circuit judge to rehear her appeal in

the face of these outrageous accusations. (Pet. App. at 26a,

27a.)

In recognition of the defects of her position, Dr.

Polsby finally argues that even though summary affirmance

may be appropriate “in certain types of cases” (Pet. at 5), it

was not appropriate here because her right of publicity claim

is a “complex” claim “of first impression” in the D.C. Circuit

involving a “newly-recognized” tort. (Pet. at 19-20.) Even if

Dr. Polsby were correct about the propriety of granting

summary affirmance in such cases, hers was no such case.

As demonstrated in Respondents’ reply brief to the

D.C. Circuit, hers is not a case of first impression for the

D.C. Circuit or the district court. See Brown v. Twentieth

Century-Fox Film Corp., 15 F.3d 1159 (D.C. Cir. 1994)

(affirming dismissal of right of publicity claim); Anchorage-

Hynning & Co. v. Moringiello, 697 F.2d 356, 360-61 (D.C.

Cir. 1983); Lane, 23 Media L. Rep. (BNA) at 1387; Pearce,

664 F. Supp. 1490; Barnako, 1987 WL 10230, at *2.

Likewise, it is not a case of first impression for the Court of

Appeals of the District of Columbia, which addressed and

disposed of a similar right of publicity claim in Vassiliades,

492 A.2d 580. See generally Erie R.R. Co. v. Tompkins, 304

U.S. 64 (1938).

Given the patent deficiencies in Dr. Polsby’s right of

publicity claim, it could hardly be classified as anything other

than simple. Finally, even Dr. Polsby acknowledges that the

right of publicity, which dates back at least to the 19”

Century, see Warren & Brandeis, The Right to Privacy, 4

HARV. L. REV. 193, 215 (1890), was considered forty-five

years ago, see Haelen Labs., Inc. v. Topps Chewing Gum,

Inc., 202 F.2d 866 (2d Cir.), cert. denied, 346 U.S. 816

(1953), and thus can hardly be characterized as “newly

recognized.”

Accordingly, Dr. Polsby has failed to demonstrate

that the D.C. Circuit’s summary affirmance of the district

court’s dismissal was anything but proper.

CONCLUSION

For these reasons, the Court should deny the Petition.

Respectfully submitted,