Michael Crook gets publicity as defendant, but probably has no publicity defense

Michael Crook gets publicity as defendant, but probably has no publicity defense

Summary: It's not hard to dislike Michael Crook, a person who played fast and loose with the trust and personal information of various Craigslisters, then used the DMCA to stop online outlets from running an unflattering photo with their coverage. EFF has used his actions as a platform to highlight DMCA abuses by filing a related lawsuit. But does Crook have other legal grounds for objecting to the unauthorized use of his likeness? In this context, probably not.

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TOPICS: Legal
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EFF filed a lawsuit this week seeking to prevent abuses of the notice and takedown provisions of the DMCA.  The suit involves Michael Crook, who became notorious earlier this year  à la Jason Fortuny for revealing salacious and personal details about various Craigslisters to whom Crook had masqueraded as a young woman.  (Apparently this kind of activity is a species of "griefing.")  As EFF's press release and related coverage explain, Mr. Crook has been issuing takedown notices related to the unauthorized posting of a screengrab photo of him (shown here) taken from the Fox News program Hannity and Colmes.  Mr. Crook is being widely and legitimately criticized for asserting a supposed copyright in a photo taken from Fox News coverage.  

But as far off base as Mr. Crook may be on that front, the unauthorized use of his name and likeness potentially raises a different intellectual property consideration:  that of the right of publicity.  There would of course be a good deal of irony to Mr. Crook's attempted assertion of that right in connection with EFF's suit, given the nature of the activities that brought him to the forefront of people's attention.  And in California at least, our publicity statute confers rights primarily related to associating one's name and/or likeness with sales and advertising activities, and specifies no permission is required for such use in connection with "any news...account."  (These laws do vary state by state, and internationally.)  Finally, the DMCA concerns itself specifically with copyright; thus, these DMCA misuse claims are unlikely to lose their teeth even if Mr. Crook were to look to right of publicity principles as a fallback justification for his notices.

[Updated November 5, 9:17 a.m.:]   And kudos to Valleywag, for finally getting in on the fun.

Topic: Legal

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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3 comments
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  • Its about time

    He isn't the only one abusing the DMCA. WalMart, and other retailers, misused the DMCA by claiming Fatwallet was violating copyright by posting prices on black Thursday (the day after thanksgiving) and there was that whole mess with Dibold and the flaws in their voting machines.

    I think this is the first time I have seen monetary damages being asked for though.
    Edward Meyers
  • A more interesting DMCA abuse case

    The Crook case is small potatoes compared to the other DMCA abuse case the EFF has filed:
    http://www.eff.org/deeplinks/archives/004973.php

    In this one, the Landmark Foundation, essentially a cult along the lines of Scientology, is abusing the DMCA to get people to take down video from a documentary exposing their wrongdoings.
    tic swayback
  • The original offending article

    this is the article Crook targeted that got him sued:
    http://www.10zenmonkeys.com/2006/09/18/in-the-company-of-jerkoffs/

    and here's a statement from the guy suing him:
    http://www.10zenmonkeys.com/2006/11/01/eff-crook-dmca-lawsuit/
    thebonobo