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Martha Hart sues WWE for using Owen's likeness without permission and not paying royalties

Well, this should be interesting.  Let's start with Hart's press release (PDF):

WIDOW OF DECEASED PROFESSIONAL WRESTLER OWEN HART FILES LAWSUIT AGAINST WORLD WRESTLING ENTERTAINMENT, VINCE MCMAHON & LINDA MCMAHON


WWE continues to use Owen Hart’s Name and Image for Marketing more than 11 Years After he Was Killed in a WWE-sponsored Stunt; In Violation of Contract and Contrary to Family’s Wishes


HARTFORD, Conn., June 22, 2010 ―
Martha Hart, the widow of the late Owen Hart, a professional wrestler who was killed in a May 1999 stunt orchestrated by World Wrestling Entertainment (WWE) today filed suit in the U.S. District Court here against WWE, Vince McMahon (current chairman and CEO) and Linda McMahon (CEO until 2009). The lawsuit alleges the WWE and the McMahon’s used Owen Hart’s name and likeness without right in dozens of commercial videos and other materials, violated a contract restricting the use of Owen Hart’s name, likeness and wrestling footage, and disregarded Martha Hart’s wishes against further association of her late husband’s name with WWE following his death. (Mrs. Hart and WWE settled a wrongful death lawsuit in 2000. Mrs. Hart established the Owen Hart Foundation later that year.)


"In the eleven years since Owen’s tragic and avoidable death, I have worked tirelessly to disassociate
Owen’s name and likeness from anything related to WWE in order to protect our children from any
reminder of the circumstances surrounding their father’s death, and to avoid any misplaced perception
that I endorse WWE," said Martha Hart in a statement.


"Unfortunately, even though WWE, Vince McMahon and Linda McMahon were and are well aware of my wishes and desire to shield my children from WWE and its activities, I was shocked to learn earlier this year that they have been using Owen’s name and likeness in videos, websites, television programs and print materials. Given this callous, insensitive and irresponsible behavior, one must question the moral character of Vince and Linda McMahon and the manner in which they conduct their business."


According to the lawsuit filed today before the U.S. District Court in Hartford,


"Since Owen’s death, the WWE and McMahons have sought every available opportunity to further exploit Owen’s personality for their own commercial benefit. Their use of Owen’s name and likeness draws attention to the WWE’s ongoing violent and highly questionable theatrical activities that caused Owen’s death. Defendants’ use of Owen’s name and likeness is also in direct disregard of Martha’s and her children’s objections…The WWE’s wrongful use of Owen’s name and likeness, over Martha’s continuing objection to any association with defendants and in the absence of any legal right of use, creates the wrongful impression that Martha and the Estate now support, approve or condone the video (which they do not)."


The lawsuit seeks to enjoin the WWE from further use of Owen Hart’s name and likeness, and seeks unpaid royalties as well as damages for breach of contract, copyright infringement, unjust enrichment, accounting and unfair and deceptive trade practices.

Mrs. Hart is represented by the law firm Nixon Peabody LLP.

The full complaint (PDF including copies of Owen's last contract with the company and agreements that he signed with them afterwards) is also online, at the same official website for the lawsuit (Yup.) that hosts the press release.

The story is being picked up by the mainstream media, starting with an AP storyCNN's story has some pretty interesting stuff:

Ed Patru, [Linda] McMahon's communications director, told CNN he "assume[s] the company will be responding at some point today."

McMahon, the likely Republican nominee for Senate in Connecticut, faces Democratic state Attorney Gen. Richard Blumenthal. Polls show Blumenthal with a double-digit advantage over McMahon, even after he admitted to making misstatements about his military service.

"I was shocked to learn earlier this year that they have been using Owen’s name and likeness in videos, websites, television programs and print materials. Given this callous, insensitive and irresponsible behavior, one must question the moral character of Vince and Linda McMahon and the manner in which they conduct their business," Hart also said in the statement.

UPDATE: Speaking with CNN, WWE lawyer Jerry McDevitt said an agreement had never been reached to refrain from using footage of Owen Hart.

"WWE is well within their rights" to use the material, McDevitt said.

McDevitt also questioned the timing of the reported lawsuit, given McMahon is now running for Senate.

"In eleven years [since the initial settlement], we have not received an e-mail, a letter, or anything from Hart," he said.

The AP's follow up story adds more:

"They'd have to be living under a rock if they didn't get that I don't want any association with them whatsoever or Owen to be associated with them whatsoever," said Martha Hart, who lives in Calgary, Alberta, with the couple's two children, now 18 and 14.

"I believe it is morally, ethically and legally wrong for the WWE to seek profit from Owen's death," she told reporters at a news conference held at a hotel in downtown Hartford. The WWE is based in Stamford.

Jerry McDevitt, an attorney for the WWE, called the lawsuit "a political stunt" coming as McMahon campaigns. Martha Hart's suit and accompanying news conference were the first time the company has heard from her since she legally settled with them in 2000, he said.

"I don't think you'd see what happened today if Linda wasn't running for Senate," McDevitt said. Martha Hart denied her case had anything to do with the campaign but said voters in Connecticut should question Linda McMahon's moral character.

...

"The death of Owen Hart was a tragic accident and this claim is nothing more than pure political orchestration," said Robert Zimmerman, a spokesman for the WWE, to which McMahon's campaign had referred requests for comment.

McDevitt, the company's attorney, argued that the WWE has the right to use copyrighted material featuring Owen Hart. The publicly traded company released a video in April called "Hart & Soul: The Hart Family Anthology," which features Owen Hart and other wrestlers in the Hart family, some of whom still perform for the WWE.

"Martha Hart does not have some exclusive right to the story of her husband; it's just that simple," McDevitt said.

Besides stopping the WWE from using Owen Hart's images, Gregg Rubenstein, a Boston-based attorney for Martha Hart, said his client, as the personal representative of her late husband's estate, is seeking any profits due from his appearances in the videos and other materials that would be due under his contract with the WWE. The WWE attorney said it will be up to a court to decide whether the estate is owed any money from the sale of the videos.

...

Both McDevitt and Rubenstein agree there is nothing in a wrongful death settlement that WWE reached with Martha Hart in 2000 addressing the company's use of Owen Hart's image.

Rather, Rubenstein points to a provision in Owen Hart's 1996 booking contract with Titan Sports — a former name of the wrestling company — that says control of "original intellectual property," such as his legal name, ring name, likeness, personality, character, caricatures, voice, gimmicks and routines, reverts to the wrestler after the contract is terminated.

Rubenstein said that the contract was terminated when Owen Hart died and that Martha Hart and Owen Hart's estate control his likeness, name and celebrity.

The same contract, which was signed by Linda McMahon, says the promoter, its licensees and sublicensees "may continue to exploit materials, goods, merchandise and other items incorporating any original intellectual property made before such termination until all such materials, goods and merchandise are sold off."

Hart responded to McDevitt's claims about the timing in an interview with the Connecticut Mirror:

McMahon, the former WWE chief executive officer until last year, is running for the U.S. Senate, but Hart said the timing of the suit has nothing to do with politics.

"I have no interest or care about Linda's politics," she said. "I have no connection with any of her competitors."

Between the complaint and the news stories, it looks like the main issues are:

  • Martha Hart's claim that WWE has not paid royalties for use of Owen Hart's likeness.
  • The wording of the standard WWE contract when it comes to the ownership of the wrestler's likeness.

If WWE didn't pay royalties to the estate, then she seems to have a pretty solid case on that count at least.  The likeness issue is a pretty interesting interpetation of the contact.  Are there any lawyers, law students, or paralegals reading this who can better explain it?  Does WWE's ownership of the footage and photos supercede the likeness rights owned by the estate?  Their contracts are so one-sided that I can't see them opening up such a huge loophole.