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Lee S. Brenner

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A circuit court in Cook County, Illinois granted summary judgment in favor of Crain Communications (a publishing company) and others for publishing an article in June 2016 that allegedly was defamatory against Joseph J. Fox, then co-founder and CEO of Ditto Holdings, Inc.

(See Fox v. Crain Communications, Inc., et al., Case No. 17L5955.)

The article, titled “Frustrated investors led Fox hunt in LA” in digital form and “The Elusive Fox Who Fled to L.A.” in print, addressed Ditto’s financial position, investigations launched by the SEC and the Financial Industry Regulatory Authority, an employment lawsuit filed by a former Ditto executive, and testimonials from Ditto’s investors.

In his complaint, Fox alleged that the following statement and headlines in the article were false: a “federal judge in Chicago agreed with Simons, ordering Ditto in April to pay him $2.7 million” (the Judge Statement), “Frustrated investors led Fox hunt in LA,” and “The Elusive Fox Who Fled to L.A.” Fox claimed that Crain Communications, the company’s editor, and the reporter of the article (collectively, Crain Communications) knowingly published false and defamatory information about him.

Crain Communications moved for summary judgment on several bases, namely that:

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The Second Circuit Court of Appeals recently affirmed the dismissal of a case against BuzzFeed, an internet media company, for publishing an allegedly libelous article about a British news agency, Central European News Ltd. (“CEN”), and its founder, Michael Leidig. See Leidig v. BuzzFeed, Inc., No. 19-851-cv (2d Cir. Dec. 19, 2019) (“Order”).

In April 2015, BuzzFeed published the article in question, entitled “The King of Bullsh*t News” (the “Article”). The Article addressed news stories on various bizarre topics sold by CEN to third-party English-language media services around the world. CEN’s stories reported, for example, that a two-headed goat was born on a farm in China, that a Russian woman killed her kitten by dying it pink, and that teenagers in China were walking cabbages on leashes to alleviate feelings of loneliness. The Article – based on many months of investigation conducted by BuzzFeed journalists – stated that “the evidence assembled by BuzzFeed News suggests that an alarming proportion of CEN’s ‘weird news’ stories are based on exaggeration, embellishment, and outright fabrication[.]”

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On December 6, a federal jury in the Central District of California found that Tesla CEO Elon Musk did not defame cave diver Vernon Unsworth by referring to him in a tweet as “pedo guy.” Unsworth v. Musk, No. 2:18-cv-08048 (C.D. Cal. Dec. 6, 2019). Unsworth, who helped rescue a boys’ soccer team from a flooded cave in Thailand in July 2018, alleged that a series of tweets Musk published to his nearly 30 million Twitter followers were defamatory, falsely accused Mr. Unsworth of being a pedophile and child rapist, and caused Unsworth worldwide damage to his reputation and emotional distress. The jury deliberated for less than one hour before finding in favor of Musk.

During a CNN interview following the 2018 rescue, Unsworth had criticized Musk’s showing up to the cave site with a mini-submarine as a “PR stunt,” and said that the mini-submarine “had absolutely no chance of working” to save the boys. Unsworth’s complaint alleged that Musk retaliated against this criticism with a series of defamatory tweets and a series of defamatory emails sent to a Buzzfeed News reporter.

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On November 8, 2019, a federal judge denied a motion by Defendant Marc Jacobs International LLC and other defendants to dismiss Plaintiff Nirvana LLC’s copyright and trademark infringement lawsuit regarding a “smiley face” design and logo Nirvana claims to own. Nirvana’s complaint alleges that items in Marc Jacobs’ “Bootleg Redux Grunge” clothing collection infringed Nirvana’s rights to the smiley face design and logo, which its co-founder, Kurt Cobain, created in 1991 and which Nirvana has used continuously since 1992 to identify its music and licensed merchandise.

The clothing items in question – primarily a t-shirt included in the Bootleg Redux Grunge collection – feature what allegedly appears to be a version of Nirvana’s asymmetrical smiley face logo. Whereas Nirvana’s design features X’s for eyes, however, Marc Jacobs’ t-shirt has the letters M and J. Above the smiley face, Marc Jacobs’ t-shirt uses the word “Heaven,” whereas Nirvana’s original design uses the word “Nirvana.” The typeface used in the competing designs is similar, and both designs consist of a yellow smiley face against a black background. Nirvana brought suit against the Defendants in December 2018, accusing them of copyright and trademark infringement, false designation of origin, and unfair competition.

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The makers of popular Peloton stationary indoor cycling equipment successfully defeated trademark infringement claims brought against them because the plaintiff waited too long to file suit, bringing them one step closer to complete domination of the in-home fitness world. A recent ruling in the Central District of California ensures that they can continue to use the Peloton mark to sell their exercise equipment and the dream of the perfect workout solution.

The dispute arose when Move Press, the publisher of cycling publication Peloton Magazine, sued Peloton Interactive, the producer of Peloton cycling equipment and on-demand spin classes, for trademark infringement, federal Lanham Act and California state unfair competition, false advertising, and cancellation of trademark registrations over the use of the term “Peloton.” (“Peloton” refers to the main group or pack of cyclists in a race.) Peloton Interactive countersued for cancellation of Move Press’s trademark registrations and declaratory judgment regarding validity of Move Press’s trademarks, non-dilution, and non-infringing use.

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The U.S. District Court for the District of Columbia recently dismissed a case against three media corporations – CNN, Rolling Stone, and HuffPost – and several employees of those corporations for publishing or broadcasting allegedly defamatory statements regarding Joseph Arpaio’s 2017 criminal contempt of court conviction.

Arpaio is no stranger to public controversy. While serving as sheriff of Maricopa County, Arizona from 1993 to 2017, Arpaio was often criticized for, among other things, his office’s policing tactics in Latino neighborhoods. In one lawsuit against him, Arpaio and his office were enjoined from detaining people “based only on knowledge or reasonable belief . . . that [they were] unlawfully present within the United States[.]” Arpaio ignored the court’s order and continued to engage in conduct that violated the injunction. In July 2017, Arpaio was convicted of criminal contempt of court (a misdemeanor) for willfully disobeying the injunction. In August 2017, President Donald Trump pardoned Arpaio before he was sentenced. In January 2018, Arpaio then decided it was a good time to run for the U.S. Senate.

CNN, Rolling Stone, and HuffPost each published a story about Arpaio’s Senate run and colorful background. CNN anchor Chris Cuomo introduced a report about Arpaio’s Senate run and erroneously referred to him as a convicted felon. (The report itself correctly stated that Arpaio was convicted of a misdemeanor and provided context for the crime.) Rolling Stone published an article about Arpaio and erroneously referred to him as an “ex-felon.” HuffPost published an article about Arpaio and erroneously stated that Arpaio had spent time in prison for his contempt of court conviction. The three corporations corrected their statements when they learned of their errors.

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A federal district court recently dismissed an invasion of privacy and infliction of emotional distress action against Tumblr brought by a Connecticut woman whose ex-boyfriend had uploaded a series of nude photographs on social media and the revenge porn site myex.com. The court found that Section 230(c)(1) of the Communications Decency Act (CDA) expressly preempted the woman’s claims, which treated Tumblr like the “publisher” or “speaker” of the offensive postings.

Although the nude photographs of the plaintiff were taken down, they soon migrated to Tumblr, where users could view the photos, along with her name, links to her social media accounts, and other identifying personal information. The plaintiff repeatedly engaged Tumblr to remove the unauthorized intimate photographs, only to have the images reposted by third parties following removal. The plaintiff ultimately initiated a lawsuit against Tumblr, claiming it did not preemptively remove the photographs even after receiving repeated notice of unauthorized uploads.

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In an age where the luxurious lives of reality housewives populate millions of televisions throughout the country, the day-to-day activities of wealthy suburban moms are well known to Americans. Stephanie Smith, a wealthy mother of five young children living in the Pacific Palisades near the luxurious Los Angeles coastline, was one such woman. One noteworthy thing set Stephanie Smith apart, however – her multi-million-dollar marijuana empire.

Smith was a commercial real estate developer and landlord who leased her properties to marijuana growers. Those growers allegedly paid her more than three times the standard rent and produced tens of thousands of weed plants. On December 13, 2017, Smith’s weed-growing warehouses became public knowledge after police raided her home and discovered the plants.

Newspapers immediately picked up the story, calling Smith a “Queenpin” and her property “a weed fortress.” Smith v. Palisades, No. B292107 2019 WL 4744765 (Cal. Ct. App. Sept. 30, 2019) at *1. Palisades News, a local community newspaper, published an article stating that Smith was “busted” for running an illegal marijuana-growing operation of a size normally associated with a “drug lord” and that Smith made millions of dollars per month from the operation. Id. Three months after the raid, Smith sued Palisades News for defamation (libel), false light, and intentional infliction of emotional distress in Smith v. Palisades News.

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On July 10, 2019, the United States District Court for the Eastern District of Pennsylvania dismissed with prejudice a defamation and false light lawsuit filed by a dancer at a New Jersey Strip club against the New York Daily News, holding that the plaintiff had failed to plead actual malice with respect to her claims.

The case stemmed from a December 2017 Daily News article about the government-ordered closing of the strip club Satin Dolls, best known as a frequent filming location for a popular television series. The article noted that New Jersey state authorities had ordered the shutdown of Satin Dolls after accusing the club of engaging in illegal activity, such as alleged prostitution, lewd activity, racketeering, and extortion-related charges. The article was accompanied by a photograph of two Satin Dolls employees posing with merchandise related to the television series. One of the photographed employees, Diane LoMoro, subsequently sued the Daily News for defamation, claiming that the article falsely linked her to alleged criminal conduct; that the paper allegedly doctored the photo to make Ms. LoMoro appear “fatter, larger, uglier, blotchier, discolored, disproportionate, and grotesque”; and that the Daily News allegedly invaded Ms. LoMoro’s privacy by portraying her in a false light.

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The United States District Court for the Southern District of New York recently dismissed a claim of copyright infringement against Mic Network, Inc. over its use of a partial screenshot of a New York Post article in a subsequent publication. The screenshot featured a photograph of a man in a bar, with the caption “Why I won’t date hot women anymore” on one side and a selection of the article’s text on the other. The Court found Mic’s use of the screenshot was protected by the fair use defense.

The case arose when photographer Stephen Yang sued Mic for copyright infringement over Mic’s use of the photograph Yang licensed to the New York Post for its April 2017 article, which recounted the dating experience of a man living in New York. The article created a great deal of buzz on social media and provoked heated debate and substantial criticism because of its provocative content.

In response to this debate, Mic published its own article, “Twitter is skewering the ‘New York Post’ for a piece on why a man ‘won’t date hot women,‘” which featured the screenshot, including a portion of Yang’s photograph. Yang sued for copyright infringement over Mic’s use of his photograph. Mic responded with a motion to dismiss Yang’s claim on the grounds its use of the photograph was protected by the fair use doctrine. (As evidenced by its title, Mic’s article discussed and added to the criticism surrounding the original article.)

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