`
`
`
`LTVN HOLDINGS, LLC
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`NADER ANTHONY ODEH
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`
`
`
` :
`
` :
`
` :
`
` :
`
` :
`
` :
`
` :
`
` ...o0o...
`
`
`
`
`
`
`
`
`
`
`
`
`
`Civil Action No. CCB-09-789
`
`
`
`
`
`MEMORANDUM
`
`Now pending before the court is a motion to dismiss or for judgment filed by defendants
`
`Nader Anthony Odeh and his company, Claims Consulting LLC (“Claims Consulting”)
`
`(collectively “defendants”). Plaintiffs LTVN Holdings, LLC (“LTVN”) and Irwin R. Kramer have
`
`sued Mr. Odeh and Claims Consulting, asserting violations of federal and state copyright law and
`
`the Lanham Act, as well as various state law causes of action, including breach of contract,
`
`conversion, and invasion of privacy. The issues in this motion have been fully briefed and no oral
`
`argument is necessary. For the reasons stated below, defendants’ motion will be granted in part and
`
`denied in part.
`
`
`BACKGROUND
`
`
`
` LTVN is a Maryland company that produces, presents, and distributes videos on various
`
`legal, consumer, and business issues on CLIENTELEVISION.com. Mr. Kramer, a former law
`
`professor who has appeared on various televised legal programs, founded LTVN and serves as the
`
`company’s managing member. LTVN first published the videos on its website on July 2, 2007. (See
`
`Compl. Ex. C.) Mr. Kramer created the videos and assigned his rights to them to LTVN, which
`
`secured a Certificate of Registration from the Register of Copyrights on March 16, 2009. LTVN
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 2 of 13
`
`allows others to post its videos on their websites by licensing topical CLIENTELEVISION
`
`“channels” to them through basic and premium service plans. Under the basic service plan,
`
`individuals or companies may register as “network affiliates” on CLIENTELEVISION.com and
`
`access codes for embedding channels containing a limited selection of videos for use on their own
`
`websites. Each video is followed by a seven-second message promoting CLIENTELEVISION.com
`
`as the source of its content. Although LTVN does not charge affiliates for the basic service plan, it
`
`only grants access codes to those affiliates that accept LTVN’s Network Affiliation Agreement,
`
`which prohibits affiliates from tampering with the videos through editing. In addition, the
`
`Agreement prohibits affiliates from presenting the videos as their own and requires them to
`
`“stipulate that the Content is supplied by LTVN and is protected by copyright and owned by
`
`LTVN.” (See Compl. Ex. B at 2.)
`
`
`
`LTVN’s premium service plan offers affiliates customized channels for an annual license
`
`fee. Premium service affiliates may select any video within the CLIENTELEVISION library and
`
`present the videos without promotional messages, taglines, or advertising. LTVN also offers these
`
`affiliates services such as co-branding the channel by superimposing the affiliate’s name or logo on
`
`the video player screen, customizing videos to promote the affiliate’s services, or running the
`
`affiliate’s own promotional message within the channel. Premium service affiliates must agree to
`
`display the videos in accordance with LTVN’s Network Affiliation Agreement.
`
`
`
`Mr. Odeh, the managing member of the Louisiana company Claims Consulting, works as a
`
`public adjuster and markets his services through Claims Consulting’s website. In January 2009, Mr.
`
`Odeh contacted LTVN and expressed interest in licensing a customized channel to display videos
`
`dealing with property insurance claims on the Claims Consulting website. Mr. Odeh repeatedly
`
`spoke with and emailed Mr. Kramer, inquiring about the details of customizing LTVN’s videos for
`2
`
`
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 3 of 13
`
`his own website and, at one point, emailing Mr. Kramer graphics to use for superimposing his
`
`company’s name on the video player screen. On or about February 2, 2009, Mr. Kramer emailed
`
`Mr. Odeh a price quote for the services he had requested. Mr. Odeh initially failed to respond to the
`
`email, and when Mr. Kramer reached him, Mr. Odeh explained that he was no longer interested in
`
`Mr. Kramer’s services. On or about February 5, 2009, Mr. Odeh registered as a network affiliate on
`
`LTVN’s website.
`
`Mr. Odeh posted 12 LTVN videos related to filing insurance claims on his website on
`
`March 12, 2009. (See Def.’s Mot. to Dismiss Ex. 1.) Claims Consulting presented the videos as its
`
`own by removing references to LTVN and CLIENTELEVISION.com, deleting LTVN’s animations
`
`that appeared at the beginning and end of each video, and removing LTVN’s seven-second
`
`promotional video. Claims Consulting also referred to the videos as “our information videos” and
`
`displayed them in its own flash video player. (See Compl. Ex. E.) Furthermore, on the bottom of the
`
`page displaying the videos, Claims Consulting posted the following notice: “Copyright © 2009
`
`Claims Consulting, LLC. All Rights Reserved.” (Compl. Ex. F.)
`
`LTVN and Mr. Kramer filed suit against Claims Consulting and Mr. Odeh on March 30,
`
`2009, asserting claims arising under both federal and state copyright and trademark law, as well as
`
`various state common law actions. On November 5, 2009, this court denied the defendants’
`
`previous motion to dismiss for lack of personal jurisdiction and improper venue. Defendants have
`
`now filed another motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
`
`
`
`ANALYSIS
`
`A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted only if the
`
`“material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter
`
`
`
`3
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 4 of 13
`
`of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal quotation marks and
`
`citation omitted). The plaintiff bears the burden of proving that subject matter jurisdiction exists.
`
`Piney Run Pres. Ass’n v. County Commissioners of Carroll County, 523 F.3d 453, 459 (4th Cir.
`
`2008). When considering a Rule 12(b)(1) motion, the court should “regard the pleadings as mere
`
`evidence on the issue, and may consider evidence outside the pleadings without converting the
`
`proceeding to one for summary judgment.” Evans, 166 F.3d at 647 (internal quotation marks and
`
`citation omitted).
`
`“[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve
`
`contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v.
`
`City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks and alterations
`
`omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). When ruling
`
`on such a motion, the court must “accept the well-pled allegations of the complaint as true,” and
`
`“construe the facts and reasonable inferences derived therefrom in the light most favorable to the
`
`plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997). “Even though the
`
`requirements for pleading a proper complaint are substantially aimed at assuring that the defendant
`
`be given adequate notice of the nature of a claim being made against him, they also provide criteria
`
`for defining issues for trial and for early disposition of inappropriate complaints.” Francis v.
`
`Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To survive a motion to dismiss, the factual
`
`allegations of a complaint “must be enough to raise a right to relief above the speculative level, ...
`
`on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell
`
`Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted).
`
`Thus, the plaintiff’s obligation is to set forth sufficiently the “grounds of his entitlement to relief,”
`
`offering more than “labels and conclusions.” Id. (internal quotation marks and alterations omitted).
`4
`
`
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 5 of 13
`
`“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
`
`misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to
`
`relief.’” Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1950 (2009) (quoting Fed. R. Civ. P. 8(a)(2)).
`
`
`Copyright Claims (Counts I & II)
`
`The plaintiffs sue for copyright infringement under both the federal Copyright Act, 17
`
`U.S.C. § 101, et seq., (Count I) and state copyright law (Count II). As these two claims are
`
`substantively identical, the court will dismiss the claim based on state copyright law because it is
`
`preempted by the Copyright Act. See 17 U.S.C. § 301. Under the Copyright Act, statutory damages
`
`and attorney’s fees are unavailable because the plaintiffs did not register their copyright prior to the
`
`alleged infringement or within three months of the first publication. See 17 U.S.C. § 412. The
`
`defendants argue that the videos were posted to the Claims Consulting website on March 12, 2009,
`
`but not registered with the Copyright Office until March 16, 2009. In addition, the plaintiffs first
`
`published the videos on July 2, 2007 by posting them to the LTVN website. Thus statutory damages
`
`are not available to Mr. Kramer and LTVN. See Bouchat v. Bon-Ton Dep’t Stores, Inc, 506 F.3d
`
`315, 330 (4th Cir. 2007).
`
`In addition, punitive damages are not available under the Copyright Act. See Christopher
`
`Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 545 (4th Cir. 2007). Although the plaintiffs cite
`
`Blanch v. Koons, 329 F. Supp. 2d 568, 569 (S.D.N.Y. 2004) and TVT Records v. Island Def Jam
`
`Music Group, 262 F. Supp. 2d 185, 186 (S.D.N.Y. 2003) for the proposition that punitive damages
`
`are permitted when statutory damages cannot be pursued, these cases remain outliers and Judge
`
`Stanton, who decided Blanch, has since declared Blanch “no longer good law.” See Viacom Int’l
`
`Inc. v. YouTube, Inc., 540 F. Supp. 2d 461, 463 (S.D.N.Y. 2008); see also 4-14 Nimmer on
`
`
`
`5
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 6 of 13
`
`Contracts § 14-02[C][2] (referring to TVT Records as a “rogue decision [that] should not be
`
`followed”).
`
`The defendants also dispute the plaintiffs’ claim for compensatory damages of $250,000.
`
`The plaintiffs assert that the $250,000 represents their “actual damages” because this was the cost of
`
`creating the videos, which the defendants avoided paying by posting LTVN’s videos as its own.
`
`Copyright infringers are liable for “the actual damages suffered by [the copyright owner] as a result
`
`of the infringement.” 17 U.S.C. § 504(b). Although the Copyright Act does not define “actual
`
`damages,” several courts have interpreted the term to allow recovery for the fair market value the
`
`infringer would have paid to use the copyrighted material. See Polar Bear Prods., Inc. v. Timex
`
`Corp., 384 F.3d 700, 709 (9th Cir. 2004) (holding that the fair market value license fee for use of
`
`film footage constituted an appropriate award of actual damages); On Davis v. The Gap, Inc., 246
`
`F.3d 152, 166 (2d Cir. 2001) (noting that “[i]n order to make out his claim that he has suffered
`
`actual damage because of the infringer’s failure to pay the fee, the owner must show that the thing
`
`taken had a fair market value”); Deltak, Inc. v. Advanced Sys., Inc., 767 F.2d 357, 363 (7th Cir.
`
`1985) (calculating actual damages by determining the value of use of the copyrighted material, as
`
`evidenced by its fair market value).
`
`Although the plaintiffs agree with this fair market value approach to calculating actual
`
`damages, they argue that it should be awarded the costs of producing the videos, rather than the cost
`
`of posting the videos pursuant to a licensing agreement. The present case is similar to Polar Bear, in
`
`which the defendant used the plaintiff’s film footage without authorization, after the plaintiff quoted
`
`the defendant a $37,500 licensing fee for use of the film. See 384 F.3d at 704, 709. Rather than
`
`award the plaintiff the cost of producing the footage itself, the court held that an award of $37,500
`
`in lost licensing fees was appropriate. See id. at 709. Other courts, in determining actual damages,
`6
`
`
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 7 of 13
`
`also have looked to licensing fees rather than costs of production. See On Davis, 246 F.3d at 172
`
`(holding that a copyright owner may recover actual damages “for the fair market value of a license
`
`covering the defendant’s infringing use"). Thus, if LTVN and Mr. Kramer establish copyright
`
`liability, they may seek actual damages for any fair market licensing fee they would have charged
`
`the defendants for use of their videos. At this stage in the litigation, however, it is not necessary to
`
`determine the precise amount of actual damages. As the plaintiffs may seek actual damages for lost
`
`licensing fees, Count I states a claim upon which relief can be granted.1
`
`
`Lanham Act Claim (Count IV)
`
`The plaintiffs claim that by removing designations of the source of the videos and
`
`identifying the videos as their own, the defendants violated the Lanham Act, 15 U.S.C. § 1125.2 Yet
`
`in Dastar Corp. v. Twentieth Century Fox Film Corp., the Supreme Court held that such claims are
`
`not actionable under the Lanham Act. See 539 U.S. 23 (2003). Noting the difficulty of establishing
`
`the “origin” of communicative products, the Court in Dastar held that the phrase “origin of goods”
`
`in the Lanham Act “refers to the producer of the tangible goods that are offered for sale, and not to
`
`the author of any idea, concept, or communication embodied in those goods.” Id. at 37. The Court
`
`reasoned that holding otherwise would create a “species of perpetual patent and copyright.” Id.
`
`
`
`In Dastar, the defendant copied a television series, made some edits, changed the title, and
`
`sold the series under its own name, with no attribution to the original creator. See id. at 26-27. The
`
`Court concluded that the defendant, as the producer of the copied series, was the “origin” for
`
`1 The defendants challenge the plaintiffs’ claim for injunctive relief in Count I. It is not clear the plaintiffs requested
`injunctive relief in their complaint, however, and they have not addressed the defendants’ arguments in their opposition
`brief. Therefore, the court will not interpret the complaint as requesting injunctive relief.
`2 15 U.S.C. § 1125 imposes liability on any person who uses “any false designation of origin,” which is likely to cause
`confusion as to the “origin, sponsorship, or approval of his or her goods, services, or commercial activities by another
`person” or “misrepresent the nature, characteristics, qualities, or geographic origin of his or her or another person’s
`goods, services, or commercial activities” in commercial advertising or promotion. 15 U.S.C. § 1125(a)(1)(A)-(B).
`7
`
`
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 8 of 13
`
`purposes of the Lanham Act and thus the original creators of the series could not state a claim under
`
`the Act for false designation of origin. See id. at 38. Instead, the Court reasoned that copyright law
`
`was designed “to protect originality or creativity.” Id. at 37; see also Vogel v. Wolters Kluwer
`
`Health, Inc., 630 F. Supp. 2d 585, 590 (M.D.N.C. 2008) (holding that, under Dastar, a claim
`
`against a textbook publisher that plagiarized an author’s work was actionable as a copyright claim
`
`rather than as a Lanham Act claim). Similarly, the defendants in the present case are the “origin” of
`
`the videos, as they published them on their website, and the Lanham Act does not protect the
`
`creators of the intangible video content. The content creators are instead protected by the Copyright
`
`Act. Therefore, the defendants did not falsely designate the origin of the videos and are not liable
`
`under the Lanham Act. Accordingly, Count IV of the complaint will be dismissed.
`
`
`Remaining State Law Claims (Counts III, V, VI, VII, & VIII)
`
`The plaintiffs’ remaining claims all arise under state common law: breach of contract (Count
`
`III), reverse passing off (Count V), unjust enrichment (Count VI), conversion (Count VII), and
`
`invasion of privacy (Count VIII). The defendants argue that these claims are all preempted by
`
`federal law. The Fourth Circuit has articulated a two-step test for determining when state law claims
`
`are preempted by federal copyright law. See United States v. Berge, 104 F.3d 1453, 1463 (4th Cir.
`
`1997). First, the work must fall “within the scope of the subject-matter of copyright as specified in
`
`17 U.S.C. §§ 102, 103.” Id. (internal quotation marks omitted). The videos in this case fall within
`
`the scope of the Copyright Act because they are “original works of authorship fixed in any tangible
`
`medium of expression” and qualify as “motion pictures and other audiovisual works” category. 17
`
`U.S.C. § 102(a).
`
`
`
`8
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 9 of 13
`
`Second, “the rights granted under state law must be equivalent to any exclusive rights within
`
`the scope of federal copyright as set out in 17 U.S.C. § 106.” Berge, 104 F.3d at 1463 (internal
`
`quotation marks omitted). Section 106 grants copyright owners the exclusive right to (1) “reproduce
`
`the copyrighted work”; (2) prepare derivative works based upon the copyrighted work”; (3)
`
`distribute copies of the work; (4) perform the work publicly; and (5) display the work publicly. See
`
`Fischer v. Viacom Int’l, Inc., 115 F. Supp. 2d 535, 541 n.4 (D. Md. 2000). Therefore, a state law
`
`right that is infringed by “the mere act of reproduction, performance, distribution, or display” will
`
`be preempted by the Copyright Act. See id. at 541. The Fourth Circuit has noted that a state law
`
`claim avoids preemption when it contains an “extra element that changes the nature of the state law
`
`action so that it is qualitatively different from a copyright infringement claim.” Berge, 104 F.3d at
`
`1463 (internal quotation marks omitted) (emphasis in original).
`
`The plaintiffs’ breach of contract claim is based on the defendants’ unauthorized display of
`
`the videos on their website. Although the defendants may have breached the Network Affiliation
`
`Agreement by displaying the videos without complying with the contract’s conditions for such use,
`
`this alleged wrong is already part of the plaintiffs’ copyright claim. This court previously has noted
`
`that “[a] breach of contract claim will survive preemption only when the cause of action is based
`
`upon provisions of the contract outside the subject matter of copyright.” The Nichols Agency, Inc. v.
`
`Enchanted Child Care, Inc., 537 F. Supp. 2d 774, 783 (D. Md. 2008) (citing Acorn Structures, Inc.
`
`v. Swantz, 846 F.2d 923, 926 (4th Cir. 1988)). As the breach of contract claim contains no extra
`
`element that would differentiate it from the copyright claim, it is preempted by the Copyright Act.
`
`See Madison River Mgmt. Co. v. Business Mgmt. Software Corp., 351 F. Supp. 2d 436, 444
`
`(M.D.N.C. 2005) (holding the plaintiff’s breach of contract claims to be preempted because all
`
`“emanate[d] from the alleged wrongful reproduction and distribution” of the copyrighted work);
`9
`
`
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 10 of 13
`
`Fischer, 115 F. Supp. 2d at 542 (finding a breach of contract claim preempted by copyright law
`
`where the basis of the claim was that the defendant took the plaintiff’s ideas and “used them without
`
`proper compensation or attribution”).
`
`Similarly, the plaintiffs’ claims for reverse passing off, unjust enrichment, and conversion
`
`are also preempted by the Copyright Act because all are predicated on the defendants’ unauthorized
`
`use of the videos. The reverse passing off claim asserts that the defendants improperly displayed the
`
`videos on their website and tried to pass them off as their own by removing references to the
`
`plaintiffs’ website. These facts are similar to those of Costar Group Inc. v. Loopnet, Inc., in which
`
`the defendant copied the plaintiff’s photographs and displayed them on its website as its own. See
`
`164 F. Supp. 2d 688, 714 (D. Md. 2001). The court in Costar described such reverse passing off as
`
`a “disguised copyright claim” because the underlying act of copying photographs without
`
`authorization was the same for both the plaintiff’s copyright and reverse passing off claims. Id.
`
`(internal quotation marks omitted); see also Rutledge v. High Point Regional Health Sys., 558 F.
`
`Supp. 2d 611, 621 (M.D.N.C. 2008) (holding that “[w]hen predicated on the facts underlying a
`
`claim of copyright infringement, reverse passing off fails to constitute the extra element necessary
`
`to avoid preemption by the Copyright Act”). In the present case, the act of displaying the videos on
`
`the defendants’ website forms the basis for both claims. Therefore, the reverse passing off claim is
`
`preempted by the Copyright Act.
`
`The plaintiffs’ unjust enrichment and conversion claims also lack an extra element that
`
`would distinguish them from claims arising under the Copyright Act. The unjust enrichment claim
`
`alleges that the defendants profited by using the plaintiffs’ videos without authorization. The claim
`
`for conversion alleges that the defendants’ took the videos from the plaintiffs’ possession without
`
`permission. Both claims merely reiterate the alleged facts underlying the plaintiff’s copyright claim.
`10
`
`
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 11 of 13
`
`Although “a state law action for conversion will not be preempted if the plaintiff can prove the extra
`
`element that the defendant unlawfully retained the physical object embodying plaintiff’s work,” the
`
`unlawful retention of intellectual property rights is the domain of copyright law. Berge, 104 F.3d at
`
`1463 (internal quotation marks omitted). By allegedly copying and displaying the plaintiffs’ videos,
`
`the defendants did not take any tangible property from the plaintiffs. Accordingly, the Copyright
`
`Act preempts the unjust enrichment and conversion claims. See Madison River Mgmt. Co., 351 F.
`
`Supp. 2d at 445 (holding a conversion claim preempted by the Copyright Act where the claim
`
`involved the unauthorized use of an intangible software program); Costar, 164 F. Supp. 2d at 714
`
`(finding a claim for unjust enrichment preempted by the Copyright Act).
`
`The defendants also claim that the plaintiffs’ invasion of privacy claim is preempted by the
`
`Copyright Act. Under Maryland law, the right of privacy is invaded when an individual’s name or
`
`likeness is appropriated for the use or benefit of another. See Lawrence v. A.S. Abell Co., 475 A.2d
`
`448, 451 (Md. 1984). An invasion of privacy claim protects an individual’s persona, rather than an
`
`“original work[] of authorship fixed in any tangible medium of expression,” as protected by the
`
`Copyright Act. See 17 U.S.C. § 102(a). Indeed the Copyright Act specifies that any “idea” or
`
`“concept” embodied in such tangible work is not protected by the Act. See § 102(b). Thus invasion
`
`of privacy claims are not preempted by the Copyright Act as they concern an individual’s likeness,
`
`which does not fall within the scope of the Act. See also Downing v. Abercrombie & Fitch, 265
`
`F.3d 994, 1004-05 (9th Cir. 2001) (holding that “[a] person's name or likeness is not a work of
`
`authorship within the meaning of 17 U.S.C. § 102”); Brown v. Ames, 201 F.3d 654, 658 (5th Cir.
`
`2000).
`
`
`
`11
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 12 of 13
`
`Nevertheless, Mr. Kramer fails to state an actionable claim for invasion of privacy.3 A
`
`plaintiff pursuing an invasion of privacy claim must demonstrate that the use of his likeness was not
`
`“merely incidental,” but that it was appropriated for some economic gain. Lawrence, 475 A.2d at
`
`453 (internal quotation marks omitted). Thus there must be some special value associated with the
`
`individual’s name or likeness. See id. In Lawrence, for example, the court denied an invasion of
`
`privacy claim where the individuals whose images were used in newspaper ads were neither famous
`
`nor professional models. See id. at 453; see also Barnhart v. Paisano Publ’ns, L.L.C., 457 F. Supp.
`
`2d 590, 596 (D. Md. 2006) (holding that the plaintiff failed to state an invasion of privacy claim
`
`because there was no evidence that “the plaintiff is famous or a professional model or that there is
`
`any special value associated with her likeness”). In the present case, the plaintiffs have not alleged
`
`that Mr. Kramer’s appearance in the videos conferred any extra value upon them. Although Mr.
`
`Kramer has appeared on several television programs regarding legal issues, there is no allegation
`
`that the defendants posted the videos believing viewers would recognize Mr. Kramer and assume he
`
`endorsed Claims Consulting. Instead, based on the plaintiffs’ allegations, it appears Mr. Kramer was
`
`simply the conduit for the information disseminated in the video. As the plaintiffs have failed to
`
`allege that Mr. Kramer’s presence in the videos was anything more than incidental, the invasion of
`
`privacy claim will be dismissed.
`
`
`
`
`3 Aside from the preemption issue, the plaintiffs have not responded in their opposition brief to the defendants’
`arguments regarding this claim.
`
`12
`
`
`
`
`
`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 13 of 13
`
`CONCLUSION
`
`For the foregoing reasons, the defendants’ motion to dismiss will be granted in part and
`
`
`
`denied in part. A separate Order follows.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /s/
`Catherine C. Blake
`United States District Judge
`
`
`
`June 25, 2010
`Date
`
`
`
`
`
`
`
`
`
`
`13