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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