Text of Fox News suit against Carnahan Campaign

CC 2298917v1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
________________________________________________
)
FOX NEWS NETWORK, LLC and )
CHRISTOPHER WALLACE, )
)
) Case No. _______
)
Plaintiffs, )
)
v. ) COMPLAINT
)
ROBIN CARNAHAN FOR SENATE, INC. ) JURY TRIAL DEMANDED
)
Defendant. )
________________________________________________)
Plaintiffs Fox News Network, LLC (“FNC”) and Christopher Wallace (“Wallace”)
(together, “Plaintiffs”), by their attorneys, Lathrop & Gage LLP, for their Complaint herein
allege as follows:
Parties, Jurisdiction, and Venue
1. In a smear ad against political rival Roy Blunt, Defendant Robin Carnahan for Senate,
Inc. usurped proprietary footage from the Fox News Network to made it appear – falsely – that
FNC and Christopher Wallace, one of the nation’s most respected political journalists, are
endorsing Robin Carnahan’s campaign for United States Senate. In so doing, Defendant
infringed FNC’s valuable and proprietary creative expression and used Wallace’s image and
persona for monetary gain without his permission. This action is brought against Defendant for
copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq.; for invasion of
privacy by misappropriation of likeness in violation of Missouri’s common law; and for invasion
of the right of publicity by misappropriation of identity or persona in violation of Missouri’s
common law.

2. Plaintiff FNC is a limited liability company organized and existing under the laws
of the State of Delaware with its principal place of business in New York, New York. FNC’s
sole member is a corporation organized and existing under the laws of the State of Delaware with
its principal place of business in New York, New York.

3. Plaintiff Wallace is a natural adult person who is a citizen of the District of
Columbia.

4. Upon information and belief, Defendant is a mutual benefit corporation that
operates as the campaign committee of a candidate for United States Senate, with its last known
principal place of business located in St. Louis, Missouri.

5. This Court has original jurisdiction over the claims in this action pursuant to 28
U.S.C. §§ 1331, 1332, and 1338 and 17 U.S.C. §§ 501 et seq. The jurisdictional minimum of 28
U.S.C. § 1332(a) is met because Wallace seeks in excess of $75,000 in damages.

6. This Court has personal jurisdiction over Defendant pursuant to the principles of
specific and general jurisdiction, based upon Defendant’s contacts with the State of Missouri as
well as the connection between certain of Defendant’s contacts with the State of Missouri and
the acts giving rise to the causes of action alleged in this Complaint.

7. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(a), 1391(b), and
1400(a), because a substantial part of the events or omissions giving rise to the claims occurred
in this District, and because the Defendant is subject to personal jurisdiction and may be found
in this District.


Facts
8. FNC is a news organization and the owner and operator of the Fox News Channel,
the country’s number one 24-hour cable and satellite television news network. FNC is and, at all
times relevant to the matters alleged in this complaint, was engaged in the business of news
production and dissemination.

9. Wallace is a nationally-known, award-winning, and highly respected television
news journalist who has hosted the Sunday-morning public affairs program, “FOX News Sunday
with Chris Wallace” (“FNS”) since 2003. As host of FNS, Wallace has secured interviews with
major government figures, including Bill Clinton, George H.W. Bush, Dick Cheney,
Condoleezza Rice, Hillary Clinton, Colin Powell, John Kerry, Howard Dean, Richard Gephardt,
Joseph Lieberman, John Edwards, Nancy Pelosi, President of Mexico Vicente Fox, Bill Frist,
Joseph Biden, California Governor Arnold Schwarzenegger, Dianne Feinstein, and John McCain.
Wallace is well known for his coverage of political news, including regional and national
elections. He has reported live from major election events, including Election Night, the
presidential debates, the Democratic and Republican conventions, the New Hampshire Primary,
and the Iowa Caucuses. Before joining FNC, Wallace served as a senior correspondent for
ABC’s “Primetime Thursday” and as a substitute host for “Nightline.” He has also worked for
NBC News, where he served as the chief White House correspondent and anchored “Meet the
Press” and the Sunday edition of “NBC Nightly News.” Wallace has won every major broadcast
news award for his reporting, including three Emmy Awards, the Dupont-Columbia Silver Baton,
and the Peabody Award.

10. On January 15, 2006, FNS featured an interview by Wallace of Roy Blunt, then a
Member of the United States House of Representatives from Missouri who was vying for the
position of House Majority Leader (the “FNS Interview”). An application for the United States
copyright registration for the FNS Interview is on file with the United States Copyright Office
under Case No. 1-487233081.

11. The FNS Interview, which features Wallace’s likeness and persona, unique vocal
commentary and reporting by Wallace, a graphic display of facts that Wallace used to question
Blunt about whether he was the best candidate for House Majority Leader (the “Graphics”), and
the selection of distinctive and stylized camera angles, is a creative expression of news events
that was the product of editorial discretion and substantial journalistic skills, resources, and
creative energies.

12. FNC has always been and continues to be the sole owner and proprietor of all
rights, titles, and interests in the copyrights in the FNS Interview. The copyright in the FNS
Interview is presently valid and subsisting and was valid and subsisting at all times affecting the
matters complained of herein.

13. Upon information and belief, in or about September 2010, Defendant began
disseminating on the Internet and on television an advertisement entitled “Clean up the house”
(the “Carnahan Ad”) that infringes FNC’s copyright in the FNS Interview by reproducing an
essentially verbatim copy of a 30-second clip of both video footage and voice-over commentary
appropriated from the FNS Interview.

14. The infringing advertisement, which runs for a total of 32 seconds, begins with
Robin Carnahan’s imprimatur, “I’m Robin Carnahan, and I approve this message” and the
prominent display of the address for Defendant’s website. The Carnahan Ad then displays video
footage from the FNS Interview, which features Wallace’s image and persona and displays the
legend “FOX News 1/15/06,” followed by several seconds of voice-over commentary by
Wallace taken from the FNS Interview. The Carnahan Ad misappropriates the entirety of the
special Graphics that FNC had developed for the FNS Interview.

15. Defendant reproduced Wallace’s distinctive vocal performance and news
reporting and FNC’s editorial selection of graphic images and stylized camera angles. In so
doing, Defendant violated FNC’s right to the exclusive use of its creative products in
contravention of its copyright in the FNS Interview. It also misappropriated Wallace’s likeness
and persona.

16. The Carnahan Ad has been disseminated on television and was also available for
anyone in the world to view on the Defendant’s website, robincarhahan.com, where the
misappropriated Graphics – including a copy of the Fox News logo – were prominently
displayed as the focal point of the website’s home page. Immediately to the right of the link to
the Carnahan Ad, visitors were asked to “DONATE TODAY” to Defendant. At the bottom of
the page featuring the link to the Carnahan Ad, visitors were further propositioned to “BUY
NOW” bumper stickers and t-shirts from the “TEAM ROBIN STORE” available online. In so
doing, Defendant used the FNS Interview and Wallace’s likeness and persona with the intent to
acquire commercial gain.

17. Defendant’s verbatim reproduction of footage from the FNS Interview, without
consent, is a use that: (1) allows Defendant to profit commercially without paying the traditional
price; (2) causes substantial harm to the value of the FNS Interview, and (3) was based upon the
unique expressive content of the FNS Interview.

18. Defendant’s unauthorized use of the FNS Interview footage in its Carnahan Ad
also devalues the original work. FNC is a news organization that has not endorsed a candidate in
the 2010 Missouri senatorial race. The value of its news reporting is based in part upon the
public’s faith in the accuracy and integrity of those reports. By including the FNS Interview in
an advertisement endorsing a specific political candidate, Defendant harmed the value of the
original work by compromising its apparent objectivity.

19. Indeed, upon information and belief, it was FNC’s position as a news organization
and Wallace’s stellar reputation that motivated Defendant to infringe FNC’s copyrighted work.
Seeing the verbatim footage from the FNS Interview gives viewers of the Carnahan Ad the false
sense that the Carnahan Ad is credible and accurate. The Carnahan Ad is designed to make it
appear as if Wallace – a trusted journalist – is instead speaking as a campaign operative. The
defendant’s conduct in stealing only certain footage from the FNS Interview is also false and
misleading: Wallace’s tough questions were included, but Blunt’s answers and explanations
were not. The value, therefore, and the purpose of the Carnahan Ad’s use of the copyrighted
FNS Interview footage were based on FNC’s unique expressive news reporting.

20. Based on the aforementioned facts, FNC is informed and believes, and on that
basis alleges, that Defendant knowingly and willfully directly infringed FNC’s copyright in the
FNS Interview.

AS AND FOR A FIRST CAUSE OF ACTION BY FNC
(Copyright Infringement)

21. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 20 of this
Complaint as if fully set forth herein.

22. The FNS Interview is an original creative work that is copyrightable. FNC owns
all of the interests and rights in the FNS Interview. FNC has filed with United States Copyright
Office an application for copyright registration in the FNS Interview.

23. Defendant infringed FNC’s copyrights by using without permission clips and
voice-over commentary from the FNS Interview in the Carnahan Ad, which was disseminated
publicly via the Internet and on television in or about September 2010.

24. Defendant’s infringement is willful in nature; indeed, Defendant acknowledged in
the Carnahan Ad that the FNS Interview was owned by “FOX News.”

25. Defendant’s use of the FNS Interview footage without consent was commercial in
nature, and therefore was presumptively unfair.

26. Upon information and belief, Defendant intends to continue to disseminate the
offending Carnahan Ad in the future, thus continuing to infringe FNC’s copyright.

27. By reason of the foregoing act of copyright infringement and the likelihood of
continued copyright infringement by Defendant, FNC has sustained and will continue to sustain
substantial damages in an amount presently unknown but to be determined at trial.

28. Further, by reason of the Defendant’s infringement and threatened future
infringement, FNC has sustained and, if the Defendant’s acts are not enjoined, will continue to
sustain irreparable harm for which no adequate remedy at law exists.

AS AND FOR A SECOND CAUSE OF ACTION BY WALLACE
(Invasion of Right of Privacy/Misappropriation of Another’s Likeness)
29. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 28 of this
Complaint as if fully set forth herein.

30. Defendant used Wallace’s likeness in the Carnahan Ad on the Internet and on
television.

31. Defendant used Wallace’s likeness in the Carnahan Ad without his consent.

32. Defendant used Wallace’s likeness in the Carnahan Ad to obtain some benefit to
itself, including, but not limited to: bringing attention to Defendant’s business; creating the
impression that Wallace endorsed Defendant; and attracting visitors to donate to Defendant and
to purchase its goods.

33. Defendant used Wallace’s likeness in the Carnahan Ad for the purpose of
appropriating to Defendant’s benefit the commercial and other values associated with Wallace’s
likeness.

34. Wallace sustained injury as a result of Defendant’s misappropriation of his
likeness because Defendant’s acts, inter alia: deprived him of his interest in the exclusive use of
his own identity; intruded upon Wallace’s private self-esteem and dignity; and caused him
emotional or mental distress and suffering.

AS AND FOR A THIRD CAUSE OF ACTION BY WALLACE
(Invasion of Right of Publicity/Misappropriation of Identity or Persona)
35. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 34 of this
Complaint as if fully set forth herein.

36. Defendant used Wallace’s likeness in the Carnahan Ad on the Internet and on
television.

37. Defendant’s use of Wallace’s likeness in the Carnahan Ad was without Wallace’s
consent.

38. Defendant’s use of Wallace’s likeness in the Carnahan Ad used Wallace’s
likeness as a symbol of his identity and public persona as a well-respected journalist and an
objective and expert political commentator.

39. Defendant commercially exploited Wallace’s likeness in the Carnahan Ad by
using Wallace’s likeness for advertising purposes and for its own purposes and benefit.

40. Defendant intended to create an impression that Wallace is associated with
Defendant and that Wallace endorses Defendant by using Wallace’s likeness in the Carnahan Ad.

41. Defendant used Wallace’s likeness in the Carnahan Ad to attract attention to
Defendant’s efforts to raise funds for its own use and to Defendant’s products.

42. Defendant used Wallace’s likeness in the Carnahan Ad to raise funds and to sell
products on Defendant’s website.

43. Defendant used Wallace’s likeness in the Carnahan Ad, which was disseminated
on television and on the Internet, with the intent to obtain a commercial advantage.

44. Wallace sustained injury as a result of Defendant’s misappropriation of his
likeness because Defendant’s acts: deprived Wallace of his interest in personal dignity and
autonomy; secured for Defendant the commercial value of Wallace’s fame; used Wallace’s
likeness and persona in a harmful fashion that diluted the value of his public persona; deprived
Wallace of his work in creating a publicly recognizable persona; created the false impression that
Wallace was not an objective reporter but rather had endorsed Defendant; and resulted in
Defendant’s unjust pecuniary gain.


WHEREFORE, Plaintiffs respectfully pray that this Court grant Judgment to
Plaintiffs as to the above causes of action, as follows:
1. Adjudging and decreeing that Defendant has infringed the copyright in this suit; has
invaded Wallace’s right of privacy by misappropriating his likeness; and has invaded Wallace’s
right of publicity by misappropriating his identity or persona;

2. Immediately and permanently enjoining and restraining Defendant, its officers, agents,
servants, employees, and those in active concert or participation with them or any of them, from
any further copyright infringement of the FNS Interview and any further misappropriation of
Wallace’s likeness, identity, or persona; and

3. Immediately and permanently enjoining and restraining Defendant, its officers, agents,
servants, employees, and those in active concert or participation with them or any of them, from
airing, entering into agreements for the airing of, or otherwise promoting the dissemination of the
Carnahan Ad; and

4. Requiring Defendant to deliver up to Plaintiffs for destruction any and all goods in
their possession or under their control, including but not limited to master copies of the Carnahan
Ad, that infringe on FNC’s copyright and/or misappropriate Wallace’s likeness, identity, or
persona; and

5. Immediately and permanently enjoining and restraining Defendant from any future
unauthorized use of the FNS Interview and of Wallace’s likeness, identity, or persona; and

6. Awarding Plaintiffs damages, including without limitation statutory damages,
compensatory damages, and/or punitive damages for the infringement of FNC’s copyright and
for the misappropriation or Wallace’s likeness, identity, or persona, in an amount presently
unknown but to be determined at trial; and

7. Requiring Defendant to account to FNC for any and all profits derived by them
through activities which infringe FNC’s copyright; and

8. Requiring Defendant to disgorge any fees, profits, or money to Plaintiffs by which it
has been unjustly enriched; and

9. Granting Plaintiffs their costs and disbursements of this action, including reasonable
attorneys’ fees; and

10. Awarding Plaintiffs pre-judgment and post-judgment interest on each and every
damage award; and

11. Granting such other, further, or different relief as the Court deems just and proper.

Dated: Kansas City, Missouri
September 15, 2010
Respectfully submitted,
LATHROP & GAGE LLP
By:__/s/ Bernard J. Rhodes_______________
Bernard J. Rhodes (MO29844)
2345 Grand Boulevard, Suite 2800
Kansas City, Missouri 64108
Tel.: (816) 460-5508
Fac.: (816) 292-2001
E-mail: brhodes@lathropgage.com
Attorneys for Plaintiffs Fox News Network, LLC
and Christopher Wallace