Kournikova v. General Media Communications, Inc.
31 Media L. Rep. (BNA) 2007, 67 U.S.P.Q. 2d (BNA) 1395, 278 F.Supp.2d 1111 (2003)
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Rule of Law:
A public figure plaintiff in a false endorsement claim under the Lanham Act involving noncommercial speech must prove by clear and convincing evidence that the defendant acted with actual malice, meaning the defendant intended to create a false impression of endorsement. Separately, a false advertising claim requires the plaintiff to demonstrate they suffered a discernible competitive injury as a result of the defendant's misrepresentation.
Facts:
- Anna Kournikova is an internationally-known professional tennis player who derives substantial income from product endorsements and sponsorships.
- General Media Communications, Inc. (GMC) is the publisher of Penthouse Magazine, which is known for sexually explicit pictorials.
- In January 2002, an amateur videographer, Frank Ramaesiri, contacted Penthouse claiming to have nude photographs of Kournikova.
- Penthouse publisher Bob Guccione met with Ramaesiri, viewed the photos, and authorized their publication.
- The June 2002 issue of Penthouse featured a cover headline reading, 'EXCLUSIVE ANNA KOURNIKOVA CAUGHT CLOSE UP ON NUDE BEACH.'
- The magazine contained a six-page article with pictures of a topless woman, identified as Kournikova, who was in fact a different woman named Judith E. Soltesz-Benetton.
- After the woman actually pictured filed a lawsuit, Penthouse publicly admitted its error on May 7, 2002.
Procedural Posture:
- Anna Kournikova filed a lawsuit against General Media Communications, Inc. (GMC) in the United States District Court for the Central District of California, a federal trial court.
- Kournikova's First Amended Complaint included a cause of action for false endorsement and false advertising under Section 43(a) of the Lanham Act.
- GMC moved for summary judgment on the Lanham Act cause of action, asking the court to dismiss the claim before trial.
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Issue:
Does the publication of photographs falsely identified as a public figure on a magazine cover constitute false endorsement under Section 43(a) of the Lanham Act where the plaintiff cannot establish a likelihood of consumer confusion or show by clear and convincing evidence that the publisher acted with actual malice by intending to create a false impression of endorsement?
Opinions:
Majority - Feess, District Judge
No, the publication does not constitute a violation of the Lanham Act. For a false endorsement claim, a public figure plaintiff must show both a likelihood of consumer confusion regarding their sponsorship or approval of the product and that the publisher acted with actual malice. Here, Kournikova failed to present sufficient evidence to create a triable issue of fact on either element. The court reasoned that Kournikova failed to establish a likelihood of consumer confusion, a determinative issue in false endorsement claims. Applying the eight-factor 'Sleekcraft' test, the court found the evidence of actual confusion—a critical factor—to be insufficient. It dismissed her expert's linguistic analysis, found her consumer survey to be fatally flawed for sampling the wrong population and failing to present the entire publication, and concluded that the use of the word 'caught' on the cover suggested the photos were taken surreptitiously, undermining any inference of endorsement. Independently, the court held that the claim failed because Kournikova, as a public figure, could not meet the high constitutional burden of proving actual malice. The First Amendment requires a showing by clear and convincing evidence that GMC subjectively intended to create the false impression that Kournikova endorsed Penthouse. The court found no such evidence, noting that the choice of the word 'caught' was contrary to an intent to suggest voluntary participation. The court also dismissed the false advertising claim because, while Kournikova and GMC may be competitors in some markets, she presented no evidence of having suffered any 'discernible competitive injury,' such as lost sales of her own products, which is a required element of that claim.
Analysis:
This case significantly clarifies the intersection of the Lanham Act and the First Amendment, establishing a high bar for public figures alleging false endorsement by media publications. It distinguishes the 'actual malice' standard for false endorsement (intent to create a false impression of sponsorship) from the 'actual malice' standard in defamation (knowledge of falsity or reckless disregard for the truth). The decision underscores that context, such as the specific wording on a magazine cover, can defeat an inference of endorsement. Furthermore, it serves as a cautionary tale for plaintiffs relying on consumer surveys, demonstrating that methodological flaws can render such evidence insufficient to survive summary judgment.
