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

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.

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.