Larry Joplin, Chief Judge:
¶1 Plaintiff/Appellant Erin Bates (Plaintiff) seeks review of the trial
court's order granting the motion to dismiss of Defendants/Appellees P.C. Cast,
a/k/a Phyllis Cast, an individual, Kristin Cast, an individual, and St. Martin's
Press, a Foreign Limited Liability Company (individually, by name, or,
collectively, Defendants) on Plaintiff's claims to actual and punitive damages
for defamation, invasion of privacy -- appropriation of likeness -- false light,
and intentional infliction of emotional distress. In this appeal, Plaintiff
asserts the trial court erred as a matter of both law and fact in dismissing her
claims.
¶2 Plaintiff filed her Petition October 31, 2012. She alleged that she met
Defendant Phyllis Cast while a high school student where Ms. Cast was a teacher,
that they developed a friendship, and that she worked for Ms. Cast after she
graduated as a personal assistant for a period of time. Plaintiff further
alleged that Defendants Phyllis Cast and her daughter, Kristin Cast, were
authors of the House of Night series of books about "vampyres," published
by Defendant St. Martin's Press, that Defendants, without her consent, named a
character Erin Bates in their latest book, Hidden, A House of Night
Novel, and that Defendants described Erin Bates disparagingly in the book.
Plaintiff further alleged that Defendant Phyllis Cast, during a live promotion
of the book, identified Plaintiff Erin Bates as a real person living in
Tulsa.
¶3 Plaintiff alleged the Defendants' descriptions of the Erin Bates character
in their book were of and concerning her, were defamatory, and injured her
professional and personal reputation. Plaintiff further alleged that Defendants
wrongfully appropriated her name, without her knowledge and consent, for their
personal gain, that Defendants' description of her depicted her in a false light
and invaded her privacy, and that Defendants' acts were outrageous and
intentional, causing her severe emotional distress. Plaintiff consequently
sought the recovery of actual and punitive damages.
¶4 Defendants filed a motion to dismiss. To the motion to dismiss, Defendants
appended a copy of their book, Hidden, A House of Night Novel, authored
by Defendants Phyllis Cast and Kristen Cast, and published by Defendant St.
Martin's Press. As to the defamation claim, Defendants argued the book was a
work of fiction about a school for "vampyres" attended by the fictional
character named Erin Bates, and the descriptions of the fictional character,
Erin Bates, could not be shown to refer to Plaintiff, or proven true or false,
and were not defamatory as a matter of law. Defendants further argued that,
because the statements could not be proven true or false, the claim for false
light -- invasion of privacy likewise failed. As to the name-appropriation
claim, Defendants asserted Plaintiff did not allege, and could not prove, an
essential element of that claim, i.e., that the name, Erin Bates, had any
inherent, intrinsic or commercial value. Defendants also argued that, as a
matter of law, their use of Plaintiff's name for a fictional character in their
book was not so extreme and outrageous as to support a claim for intentional
infliction of emotional distress.
¶5 Plaintiff objected to Defendants' motion to dismiss. To her response,
Plaintiff attached a recording of the promotional event where Defendant
identified Plaintiff Erin Bates as a real person, and admitted she based many of
her characters on her former students. Plaintiff also attached copies of
internet comments by fans of the House of Night series, describing the
Erin Bates character as less than admirable.
¶6 Plaintiff first asserted the recording of the promotional event,
identifying her as Erin Bates, a real person, demonstrated Defendants'
description of the book character as of and concerning her, and the internet
comments proved the defamatory sting of the descriptions, sufficiently
supporting the claims for defamation and false light invasion of privacy.
Plaintiff further asserted she sufficiently alleged a claim for misappropriation
of name, and that an allegation of her name's intrinsic or inherent value was
not required to survive a motion to dismiss. Plaintiff also asserted the
descriptions of her in the book were so extreme and outrageous as to support an
emotional distress claim.
¶7 On consideration of the pleadings and submissions, the trial court granted
Defendants' motion, and dismissed all of Plaintiff's claims. Plaintiff appeals,
and the matter stands submitted on the trial court record.1
¶8 "When reviewing a trial court's dismissal of an action an appellate court
examines the issues de novo." Kirby v. Jean's Plumbing Heat &
Air, 2009 OK 65, ¶5, 222 P.3d 21, 23-24. (Footnote
omitted.) (Emphasis original.) "A motion to dismiss for failure to state a claim
upon which relief may be granted will not be sustained unless it should appear
without doubt that the plaintiff can prove no set of facts in support of the
claim for relief." Id. "A petition can generally be dismissed only for
lack of any cognizable legal theory to support the claim or for insufficient
facts under a cognizable legal theory." Id. "A motion to dismiss should
be denied if relief is possible under any set of facts which can be established
and is consistent with the allegations." Id.
¶9 However, "[i]f, on a motion . . . to dismiss for failure of the pleading
to state a claim upon which relief can be granted, matters outside the pleading
are presented to and not excluded by the court, the motion shall be treated as
one for summary judgment and all parties shall be given reasonable opportunity
to present all material made pertinent to the motion by the rules for summary
judgment." 12 O.S. 2011 §2012(B).
Because the parties offered, and the trial court did not exclude, the tendered
evidentiary materials outside the pleadings in support of and opposition to the
motion to dismiss, we must treat the motion to dismiss as one for summary
judgment. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶17, 987 P.2d 1185, 1192.
¶10 In this respect, "[s]ummary judgment is appropriate only where there are
no material facts in dispute and the moving party is entitled to judgment as a
matter of law." Wathor v. Mutual Assur. Adm'rs, Inc., 2004 OK 2, ¶4, 87 P.3d 559, 561. "Summary judgment
settles only questions of law," and "[t]he standard of review of the questions
of law is de novo." Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959, 963. (Emphasis
original.) "Where a controversy is resolved by summary judgment, the appellate
courts review the entire summary judgment record independently and without
deference to a lower court." Id. "Summary judgment will be affirmed only
if the appellate court determines that there is no dispute as to any material
fact and that the moving party is entitled to judgment as a matter of law."
Id. "Summary judgment will be reversed if the appellate court determines
that reasonable men might reach different conclusions from the undisputed
material facts." Id.
¶11 "Libel is a false or malicious unprivileged publication by writing,
printing, picture, or effigy or other fixed representation to the eye, which
exposes any person to public hatred, contempt, ridicule or obloquy, or which
tends to deprive him of public confidence, or to injure him in his occupation, .
. . ." 12 O.S. 2011 §1441. In an
action for defamation, a private figure must prove (1) a false and defamatory
statement of and concerning him or her, (2) an unprivileged publication to a
third party, (3) fault amounting at least to negligence on the part of the
publisher; and (4) either the actionability of the statement irrespective of
special damage, that is, libel per se, or the existence of special damage, libel
per quod. Restatement of Laws, Second, Torts 2d, §558 (1977); White v. City
of Del City, 2012 OK CIV APP
5, ¶21, 270 P.3d 205,
213-214; Springer v. Richardson Law Firm, 2010 OK CIV APP 72, ¶7, 239 P.3d 473, 475; Trice v.
Burress, 2006 OK CIV APP 79,
¶10, 137 P.3d 1253, 1257. "It is
well settled that 'The language used must, however, be such that persons reading
or hearing it will, in the light of surrounding circumstances, be able to
understand that it refers to the person complaining, and it must have been so
understood by at least one other person . . .'" Layman v. Readers Digest
Ass'n, 1965 OK 162, ¶16, 412 P.2d 192, 195. (Citations
omitted.) That is to say, "'[i]n order to entitle one to maintain an action for
an alleged defamatory statement, it must appear that he is the person with
reference to whom the statement is made.'" Layman, 1965 OK 162, ¶21, 412 P.2d at 196.
(Citation omitted.)
¶12 In the present case, Plaintiff introduced evidence showing Defendants
named a character, Erin Bates, in their book, and that, at a promotional event
for the upcoming book, Defendant Phyllis Cast identified Plaintiff Erin Bates as
a "real" person. At first blush, then, it might be said that, when the evidence
is viewed in the light most favorable to Plaintiff, the disparaging
characterizations of the fictitious Erin Bates character contained in
Defendants' book arguably refer to the "real" Erin Bates identified by the
author.
¶13 The inquiry does not stop here, however. The Defendants' book, depicting
a school for vampyres and the school's vampyre students, is clearly a work of
fiction and fantasy, and the parties do not cite, nor do we find, any Oklahoma
precedent speaking to a claim of defamation arising from a work of pure
fiction.
¶14 In this respect, the Restatement of Laws, Second, Torts 2d, recognizes
that a defamation claim may arise from the publication of a work of fiction if
the plaintiff is sufficiently identified in the fictional work and a reasonable
reader of the fictional work would understand the fictional character refers to
the plaintiff:
d. Fictitious characters. A libel may be published of an actual
person by a story or essay, novel, play or moving picture that is intended
to deal only with fictitious characters if the characters or plot bear such
a resemblance to actual persons or events as to make it reasonable for its
readers or audience to understand that a particular character is intended to
portray that person. Mere similarity of name alone is not enough; nor is it
enough that the readers of a novel or the audience of a play or a moving
picture recognize one of the characters as resembling an actual person,
unless they also reasonably believe that the character is intended to
portray that person. . . .
Restatement of Laws, Second, Torts 2d, §564, comment d, (1977). (Emphasis
original.) Accordingly, in those jurisdictions where the issue has been
addressed, the courts uniformly hold that, in order to establish a claim for
defamation arising from a work of fiction, it must be shown that, viewing the
work of fiction as a whole, the fictional character depicts the plaintiff, and
the test is whether a reasonable reader would understand the fictional character
"was, in actual fact, [the plaintiff] conducting herself as described."
Aguilar v. Universal City Studios, Inc., 174 Cal.App.3d 384, 387 (Cal.
App. 2nd Dist. 1985). (Citations omitted.) (Footnote omitted.) Accord, Hooker
v. Columbia Pictures Industries, Inc., 551 F.Supp. 1060 (N.D. Ill. 1982);
Bindrim v. Mitchell, 92 Cal.App.3d 61 (Cal. App. 2nd Dist.1979); Hicks
v. Casablanca Records, 464 F.Supp. 426 (D.C.N.Y. 1978); Middlebrooks v.
Curtis Pub. Co., 413 F.2d 141 (4th Cir. (S.C.) 1969); Fetler v. Houghton
Mifflin Co., 364 F.2d 650 (2nd Cir. (N.Y.) 1966); Wheeler v. Dell Pub.
Co., 300 F.2d 372 (7th Cir. (Ill.) 1962); Clare v. Farrell, 70
F.Supp. 276 (D.C. Minn. 1947); Wright v. R. K. O. Radio Pictures, 55
F.Supp. 639 (D.C. Mass. 1944); Corr v. Sun Printing & Publishing
Ass'n, 177 N.Y. 131 (N.Y. 1904). If, however, upon an examination of the
entire work, it appears that no reasonable reader would regard the complained-of
statements as anything other than "rhetorical hyberbole," the author's
"fictional imaginings" or an "imaginative explanation of an episode in that
person's life about which no actual facts were known," a defamation claim will
not lie. Bindrim, 92 Cal.App.3d at 78, citing, Greenbelt Pub. Assn. v.
Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (U.S. (Md.) 1970),2 and, Hicks
v. Casablanca Records, 464 F.Supp. 426, supra.3
¶15 Considering in its totality Defendants' fictional work of fantasy about a
school for vampyres, populated by vampyre students, we are hardpressed to say,
even viewing the evidentiary materials in the light most favorable to Plaintiff,
that any reasonable reader would conclude that the book's fictional "Erin Bates"
character actually depicts Plaintiff conducting herself as described in the
book. The Erin Bates character is a teenager while Plaintiff is in her
mid-twenties. The locale of the book is entirely fictional. The only similarity
is the identity of the fictional character's name and Plaintiff's name.
¶16 However, even with the identity of names, when coupled with Defendant's
identification of Plaintiff as the "real" Erin Bates, the internet comments by
the book's fans disparage the fictional Erin Bates character, and in no way
point to Plaintiff as the subject of scorn. It seems clear to us that "any
reasonable person who read the book and was in a position to identify
[Plaintiff] with [the Erin Bates character] would more likely conclude that the
author created the latter in an ugly way so that none would identify her with"
Plaintiff. Wheeler, 300 F.2d at 376.
¶17 Given the fictitious, "other-worldly" setting of Defendants' book and its
cast of wholly fictitious vampyres, no reasonable reader of the Defendants' book
would conclude the fictional character, Erin Bates, depicts Plaintiff acting in
the way portrayed in the book. On the evidentiary materials submitted, we hold
the trial court did not err in summarily disposing of Plaintiff's defamation
claim.
¶18 "'In order to recover for false light invasion of privacy, the plaintiff
must show (1) the defendant gave publicity to a matter concerning the plaintiff
that placed the plaintiff before the public in a false light, (2) the false
light in which the plaintiff was placed would be highly offensive to a
reasonable person, and (3) the defendant had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the false light in
which the other would be placed.'" Tanique, Inc. v. State ex rel. Oklahoma
Bureau of Narcotics and Dangerous Drugs, 2004 OK CIV APP 73, ¶31, 99 P.3d 1209, 1217. (Citations
omitted.) "[T]he defendant must have knowledge of or act in reckless disregard
as to the falsity of the publicized matter or the attendant false light,"
"'equivalent of . . . actual malice,'" "that the defendant had a high degree of
awareness of probable falsity or in fact entertained serious doubts as to the
truth of the publication.'" Id. (Citations omitted.) "'[T]he right of
action for false light invasion of privacy is a product of the same societal
need as the tort of outrage or intentional infliction of emotional distress,
which will lie only in the presence of extreme and outrageous conduct.'"
Id. (Citations omitted.)
¶19 The nature of the vampyre subject matter, the vampyre characters and
vampyre school locale is utterly fictitious and fantastic, and is unquestionably
the product of the authors' imagination. Under these circumstances, the
narrative of Defendants' book cannot be said to be so utterly false or
outrageous as to support claims for false light or intentional infliction of
emotional distress. We hold the trial court did not err in summarily disposing
of Plaintiff's false light and emotional distress claims.
¶20 The Restatement of Laws, Second, Torts 2d, §652C, holds that "[o]ne who
appropriates to his own use or benefit the name or likeness of another is
subject to liability to the other for invasion of his privacy." Such a claim
rests on the recognition of a person's interest in the exclusive use of his or
her own name, in the nature of a property right:
The interest protected by the rule stated in this Section is the interest
of the individual in the exclusive use of his own identity, in so far as it
is represented by his name or likeness, and in so far as the use may be of
benefit to him or to others. Although the protection of his personal
feelings against mental distress is an important factor leading to a
recognition of the rule, the right created by it is in the nature of a
property right, for the exercise of which an exclusive license may be given
to a third person, which will entitle the licensee to maintain an action to
protect it.
Restatement of Laws, Second, Torts 2d, §652C, comment a. Liability under
§652C "is not limited to commercial appropriation[, but] applies also when the
defendant makes use of the plaintiff's name or likeness for his own purposes and
benefit, even though the use is not a commercial one, and even though the
benefit sought to be obtained is not a pecuniary one." Restatement of Laws,
Second, Torts 2d, §652C, comment b.
¶21 That said, "[t]he value of the plaintiff's name is not appropriated by
mere mention of it, or by reference to it in connection with legitimate mention
of his public activities; nor is the value of his likeness appropriated when it
is published for purposes other than taking advantage of his reputation,
prestige, or other value associated with him, for purposes of publicity."
Restatement of Laws, Second, Torts 2d, §652C, comment d. "It is only when the
publicity is given for the purpose of appropriating to the defendant's benefit
the commercial or other values associated with the [plaintiff's] name or the
likeness that the right of privacy is invaded." Id. Accord, Crump v.
Beckley Newspapers, Inc., 320 S.E.2d 70, 86 (W.Va. 1984).4
¶22 So, to recover on this theory, the plaintiff must allege and show "'(1)
the defendant's use of the plaintiff's identity; (2) the appropriation of
plaintiff's name or likeness to defendant's advantage, commercially or
otherwise; (3) lack of consent; and (4) resulting injury."' Slivinsky v.
Watkins-Johnson Co., 221 Cal.App.3d 799, 807 (Cal. App. 6th Dist. 1990).
(Citations omitted.) Even where the misappropriation cause of action has been
codified, a court has held, under a statute substantially similar to §1449, "to
plead the statutory remedy provided . . . , there must also be an allegation of
a knowing use of the plaintiff's name . . . for purposes of advertising or
solicitation of purchases," and "[a] 'direct' connection must be alleged between
the use and the commercial purpose." Slivinsky, 221 Cal.App.3d at 807.
Stated otherwise, "a plaintiff must show that the defendant used its name
'deliberately to exploit its value for advertising or trade purposes,'" or "that
defendant acted with a commercial purpose or otherwise sought some benefit from
revealing information about plaintiffs." Pump, Inc. v. Collins Management,
Inc., 746 F.Supp. 1159, 1172 (D. Mass. 1990) (Citation omitted); Bisbee
v. John C. Conover Agency, Inc., 452 A.2d 689, 693 (N.J. Super. App. Div.
1982.)
¶23 But, and as in defamation, a name misappropriation claim "fails [if there
is] no clear identification of plaintiff in the portrayal of the character . . .
in the book which would prompt a rational reader to conclude that plaintiff was
being described." Allen v. Gordon, 446 N.Y.S.2d 48, 50 (N.Y. App. Div.
1st Dept. 1982). And, if "the potential rewards for using the plaintiff's name
[are] too remote and speculative," a misappropriation claim should be dismissed.
Marks v. Elephant Walk, Inc., 548 N.Y.S.2d 549, 552 (N.Y. App. Div. 2nd
Dept. 1989).
¶24 In Oklahoma, a claim for misappropriation of name is governed
statute:
Any person who knowingly uses another's name, voice, signature,
photograph, or likeness, in any manner, on or in products, merchandise, or
goods, or for purposes of advertising or selling, or soliciting purchases
of, products, merchandise, goods, or services, without such person's prior
consent, or, in the case of a minor, the prior consent of his parent or
legal guardian, shall be liable for any damages sustained by the person or
persons injured as a result thereof, and any profits from the unauthorized
use that are attributable to the use shall be taken into account in
computing the actual damages. . . .
12 O.S. §1449(A). "In order to
establish a prima facie case of statutory violation of the right of
publicity, a plaintiff must plead facts establishing the three elements of the
claim: (1) Defendants knowingly used [Plaintiff's] name or likeness, (2) on
products, merchandise or goods, (3) without [Plaintiff's] prior consent."
Brill v. Walt Disney Co., 2010 OK CIV APP 132, ¶10, 246 P.3d 1099, 1103. Oklahoma has
clearly joined the states that condition recovery for misappropriation of
likeness or name on the allegation and proof of defendant's unconsented-to use
of plaintiff's name for some commercial purpose to plaintiff's damage. See
also, Restatement of Laws, Second, Torts 2d, §652C, Reporter's Note.5
¶25 In the present case, the allegations of Plaintiff's petition adequately
state a claim for misappropriation of name under 12 O.S. §1449(A). However, neither
Defendants nor Plaintiff adduced any evidentiary materials affecting the
substance of this claim, much less demonstrating the extent of either any
profits Defendants may or may not have derived from the use of Plaintiff's name,
or any proximate, certain, causally-related damages suffered by Plaintiff. In
this evidentiary vacuum, and contrary to Defendants' argument, we are unwilling
to hold that Plaintiff was required to produce some evidence of her name's
intrinsic value in order to survive the summary disposition of her
misappropriation claim.
¶26 Nevertheless, in affirming the trial court's summary disposition of
Plaintiff's defamation claim, we held that, given the fictitious,
"other-worldly" setting of Defendants' book, and its cast of wholly fictitious
vampyres, no reasonable reader of the Defendants' book would believe the
fictional character, Erin Bates, depicts Plaintiff, the "real" Erin Bates,
acting in the way portrayed in the book. Absent the "clear identification of
plaintiff in the portrayal of the character . . . in the book which would prompt
a rational reader to conclude that plaintiff was being described," the name
misappropriation claim must likewise fail. Allen, 446 N.Y.S.2d at 50.
¶27 The trial court's order summarily disposing of Plaintiff's claims is
therefore AFFIRMED.
BUETTNER, P.J., and BELL, J., concur.
