NO.

In the Supreme Court of the United States

BEVERLY STAYART, a/k/a BEV STAYART, v. GOOGLE, INC.,

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

GREGORY A. STAYART Counsel of Record 7505 Stillman Valley Road Rockford, IL 61109 (262) 745-7395 gastayart@live.com
Counsel for Petitioner

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

i QUESTIONS PRESENTED 1. Is Respondents sale and display of thousands of internet ads on Petitioners natural search results of her name1 protected by the First Amendment when Respondents core business is to sell and display ads? Respondents core business is not to provide newsworthy information about Petitioner, because there is no connection between Petitioners natural search results and these ads. 2. Is Respondents sale and display of thousands of internet ads on Petitioners natural search results of her name an incidental use of her name under the First Amendment when Respondents primary purpose is to exploit the commercial value of Petitioners name by selling Sponsored Links advertising?

Two groups of search results are displayed by search engines. One group consists of natural or non-sponsored links that are produced using the search engines proprietary algorithm. The other group consists of non-organic or sponsored links that appear as a result of a search engine placing them on the results page when certain keywords are searched. Bernard L. Jansen, An Examination of Searchers Perceptions on Nonsponsored and Sponsored Links During Ecommerce Web Searching, JOURNAL OF THE AMERICAN SOCIETY FOR INFORMATION SCIENCE AND TECHNOLOGY, 57(14): 1949-1961 (2006).

ii LIST OF PARTIES TO THE PROCEEDINGS IN THE COURT BELOW The caption of the case in this court contains the names of all parties to the proceedings in the United States Court of Appeals for the Seventh Circuit.

iii TABLE OF CONTENTS QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 4 A. B. C. D. Beverly Stayart . . . . . . . . . . . . . . . . . . . . . 6 Stayarts Prior Litigation . . . . . . . . . . . . . 8 Google . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Googles Misappropriation of Stayarts Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

REASONS FOR GRANTING THE WRIT . . . . . . . 22 I. THE COURTS ARE IN CONFLICT ABOUT THE TEST FOR DETERMINING WHEN PUBLICITY RIGHTS PREVAIL OVER FIRST AMENDMENT INTERESTS . . . . . . . . . 23

iv II. IN CONFLICT WITH THE DECISION BELOW, THE EIGHTH, TENTH AND ELEVENTH CIRCUITS REQUIRE A FACT-SENSITIVE BALANCING BETWEEN PUBLICITY RIGHTS AND FIRST AMENDMENT INTERESTS . . . 27 GOOGLES SPONSORED LINKS ADS ARE NOT INCIDENTAL, THEREBY DEPRIVING GOOGLE OF FIRST AMENDMENT PROTECTION . . . . . . . 36

III.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 APPENDIX: Appendix A: Opinion/ Final Judgment, In the United States Court of Appeals for the Seventh Circuit (March 6, 2013) . . . . . . . . . . App. 1 Decision and Order/ Judgment in a Civil Case, In the United States District Court for the Eastern District of Wisconsin (March 8, 2011) . . . . . . . . . App. 11 Decision and Order, in the United States District Court for the Eastern District of Wisconsin (August 17, 2011) . . . . . . . . App. 19

Appendix B:

Appendix C:

v Appendix D: Appendices 44 and 45 to Stayart Declaration Screen shots (two) of Google search results bev stayart lyrica April 27, 2010 Filed in District Court on May 27, 2010, as Appendices 44 and 45 to Stayarts Declaration in Support of Motion for Preliminary Injunction (Fold Out Exhibit) . . . . . . . App. 26 Appendix E: Exhibit 26 to the Complaint Screen shots of Google search results bev stayart ed April 8, 2010 Filed in District Court on April 20, 2010, as Exhibit 26 to Stayarts Complaint (Fold Out Exhibit) . . . . . . . App. 27

vi TABLE OF AUTHORITIES Cases Page(s)

Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407 (9th Cir. 1996) . . . . . . . . . . . . . . . . . 34 AFL Philadelphia LLC v. Krause, 639 F. Supp. 2d 512 (E.D. Pa. 2009) . . . . . . 39, 40 In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003) . . . . . . . . . . . . . 32, 33 Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006) . . . . . . . . . . . . . 32 Brown Chem. Co. v. Meyer, 139 U.S. 540 (1891) . . . . . . . . . . . . . . . . . . . . . . 36 Cardtoons L.C. v. Major League Baseball Players Assn., 95 F.3d 959 (10th Cir. 1996) . . . . . . . . . . . . . 31, 37 C.B.C. Distrib. and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F. 3d 818 (8th Cir. 2007), cert. denied 128 S. Ct. 2872 (2008) . . . . . . . . . . . . . . . . . . . . 26, 31, 32 Comedy III Prods, Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001), cert. denied 534 U.S. 1078 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Doe v. McFarlane, 207 S.W.3d 52 (Mo. Ct. App. E.D. 2006), cert. denied 540 U.S. 1106 (2004) . . . . . . . . . . . . . . . 34

vii Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) (en banc), cert. denied 540 U.S. 1106 (2004), appeal after remand, 2006 WL 1677856, 207 S.W. 3d 52 (Mo. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 37 ETW Corp. v. Jireh Publg, Inc., 332 F.3d 915 (6th Cir. 2003) . . . . . . . . . . . . . . . 26 Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011) . . . . . . . . 34 Hearts on Fire Co., L.L.C. v. Blue Nile, Inc., 603 F. Supp. 2d 274 (D. Mass. 2009) . . . . . . . . . . 5 Henley v. Dillard Dept Stores, 46 F. Supp. 2d 587 (N.D. Tex. 1999) . . . . . . . . . 39 Hirsch v. S. C. Johnson & Son, Inc., 90 Wis.2d 379, 280 N.W.2d 129 (1979) . . . . . . . 23 Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001) . . . . . . . . . . . . . . . 26 James v. Bob Ross Buick, Inc., 855 N.E.2d 119 (Oh. Ct. App. 2006) . . . . . . . . . 39 Joe Dickerson & Assocs., L.L.C. v. Ditmar, 34 P.3d 995 (Colo. 2001) . . . . . . . . . . . . . . . . . . 25 Merle v. Sociological Research Film Corp., 166 A.D. 376, 152 N.Y.S. 829 (1 Dept. 1915) . . 37 Montgomery v. Montgomery, 60 S.W.3d 524 (Ky. 2001) . . . . . . . . . . . . . . . . . 26

viii Ohralik v. Ohio State Bar Assn, 436 U.S. 447 (1978) . . . . . . . . . . . . . . . . . . . 35, 36 Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003) . . . . . . . . . . . . . . . 26 Pooley v. National Hole-in-One Assn, 89 F. Supp. 2d 1108 (D. Ariz. 2000) . . . . . . . . . 37 Rhino Sports, Inc. v. Sport Court, Inc., 2007 WL 1302745 (D. Ariz. 2007) . . . . . . . . . . . 11 Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) . . . . . . . . . . . . . . . . 26 Staruski v. Contl Tel. Co. of Vermont, 154 Vt. 568, 581 A. 2d 266 (1990) . . . . . . . . 38, 41 Stayart v. Google, Inc., 783 F. Supp. 2d 1055 (E.D. Wis. 2011), affd 710 F.3d 719 (7th Cir. 2013) . . . . . . . . . . . . . . . . . 1, 20 Stayart v. Google, Inc., --- F. Supp. 2d ---, 2011 WL -------- (E.D. Wis., Aug. 17, 2011) . . . . . . . . . . . . . . . . . . . . . . . . 1, 20 Stayart v. Google, Inc., 710 F.3d 719 (7th Cir. 2013) . . . . . . . . . . . . . . . . 1 Stayart v. Yahoo! Inc., 651 F. Supp. 2d 873 (E.D. Wis. 2009), affd 623 F.3d 436 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . 8, 9 Stayart v. Yahoo! Inc., Case No. 10-cv-00043-LA (January 10, 2010) . . 9

ix Stayart v. Yahoo! Inc., 2011 WL 3625242 (E.D. Wis.) . . . . . . . . . . . . . . 39 Stern v. Delphi Internet Serv. Corp., 165 Mis. 2d 21, 626 N.Y.S. 2d 694 (S. Ct., N.Y. Cty. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Tellado v. Time-Life Books, Inc., 643 F. Supp. 904 (D. N.J. 1986) . . . . . . . . . . . . 25 Titan Sports, Inc. v. Comics World Corp., 870 F. 2d 85 (2nd Cir. 1989) . . . . . . . . . . . . . . . . 33 Toffoloni v. LFP Publg Group, LLC, 572 F. 3d 1201 (11th Cir. 2009), cert. denied 130 S. Ct. 1689 (2010) . . . . . . . . . . . . . . . 26, 29, 30, 31 Zacchini v. Scripps-Howard Broad. Co., 47 Ohio St. 2d 224, 351 N.E. 2d 454 (1976), revd 433 U.S. 562 (1977) . . . . . . . . . . . . . . . . . . . . . . 24 Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) . . . . . . . . . . . . . . . . . . . 22, 24 Constitutional Provisions U.S. CONST. amend. I . . . . . . . . . . . . . . . . . . . . . . . 2 Statutes 28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1332(a) . . . . . . . . . . . . . . . . . . . . . . . . 2, 7 Wis. Stats. 995.50 . . . . . . . . . . . . . . . . . . . . . . . 2, 23

x Wis. Stats. 995.50(2)(b) . . . . . . . . . . . . . . 23, 28, 35 Rules Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . 1, 20, 29 Sup. Ct. Rule 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Articles Jim Edwards, Google on Trial: Brands Challenge Keyword Ads: Courts Mull Protection for Trademarked Terms, BRANDWEEK, May 21, 2007, at 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Bernard J. Jansen, An Examination of Searchers Perceptions of Nonsponsored and Sponsored Links During Ecommerce Web Searching, JOURNAL OF THE AMERICAN SOCIETY FOR INFORMATION SCIENCE AND TECHNOLOGY, 57(14): 1949-1961 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . i Frank Rose, Microsofts Bid for Yahoo Is All About Big-Budget Advertising, WIRED MAG., Mar. 4, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Treatises 1 J. Thomas McCarthy, THE RIGHTS OF PUBLICITY AND PRIVACY (2nd ed. 2007) . . . . . . . . . . . . . . . . 22 2 J. Thomas McCarthy, THE RIGHTS OF PUBLICITY AND PRIVACY (2nd ed. 2007) . . . . . . . . . . 26, 28, 29

xi Books Paul Gilster, DIGITAL LITERACY (1997) . . . . . . . . . . 35

1 OPINIONS BELOW On March 8, 2011, the United States District Court for the Eastern District of Wisconsin, Judge Lynn Adelman, entered an Order with opinion granting Respondents motion to dismiss the Complaint of Petitioner, Beverly Stayart, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim. She had alleged that Respondent used her name for purposes of advertising or trade in violation of Wisconsin statutory and common law. On March 8, 2011, the Court Clerk entered judgment dismissing the action. The Order is reported at 783 F. Supp. 2d 1055. The Order is reprinted herein at Appendix B. On August 17, 2011, that court also entered an Order with opinion denying Petitioners motion for reconsideration. That Order is unreported. That Order is reprinted herein at Appendix C. On March 6, 2013, the United States Court of Appeals for the Seventh Circuit entered a decision affirming the dismissal of Petitioners complaint in an opinion reported at 710 F. 3d 719. The opinion is reprinted herein at Appendix A. JURISDICTION The Court of Appeals decision was filed on March 6, 2013 (Pet. App. 1a). This Court has jurisdiction pursuant to 28 U.S.C. 1254(1), and Rule 13 of the Rules of the Supreme Court.

2 Jurisdiction in the federal district court was based on the provisions of 28 U.S.C. 1332(a), due to diversity of citizenship. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED United States Constitution, Amendment I Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Wisconsin Statutes Section 995.50: 995.50 Right of privacy. (1) The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief: (a) Equitable relief to prevent and restrain such invasion, excluding prior restraint against constitutionally protected communication privately and through the public media; (b) Compensatory damages based either on plaintiffs loss or defendants unjust enrichment; and (c) A reasonable amount for attorney fees. (2) In this section, invasion of privacy means any of the following: (a) Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.

3 (b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian. (c) Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record. (d) Conduct that is prohibited under s. 942.09, regardless of whether there has been a criminal action related to the conduct, and regardless of the outcome of the criminal action, if there has been a criminal action related to the conduct. (3) The right of privacy recognized in this section shall be interpreted in accordance with the developing common law of privacy, including defenses of absolute and qualified privilege, with due regard for maintaining freedom of communication, privately and through the public media. (4) Compensatory damages are not limited to damages for pecuniary loss, but shall not be presumed in the absence of proof. (6)(a) If judgment is entered in favor of the defendant in an action for invasion of privacy, the court shall determine if the action was frivolous. If the court determines that the action was frivolous, it shall award the defendant reasonable fees and costs relating to the defense of the action.

4 (b) In order to find an action for invasion of privacy to be frivolous under par. (a), the court must find either of the following: 1. The action was commenced in bad faith or for harassment purposes. 2. The action was devoid of arguable basis in law or equity. (7) No action for invasion of privacy may be maintained under this section if the claim is based on an act which is permissible under ss. 196.63 or 968.27 to 968.37. STATEMENT OF THE CASE This case involves an unresolved issue of national significance whether pursuant to freedom of the press under the First Amendment, Googles use of Petitioners name to trigger thousands of ads for prescription drugs (other than male sexual dysfunction drugs), restaurants, bars, medical doctors, podiatrists, facial cosmetics, wine, liquor bottles, vodka, penny stocks, and innumerable other products, is immunized from liability for name appropriation under Wisconsin law when there is no connection between Petitioner in the natural search results and the advertised products. This case also raises the issue of whether this use of Petitioners name under the First Amendment is merely incidental or is it exploitative to promote Googles commercial business of selling internet advertising? Googles sole purpose is to display Sponsored Links ads on Petitioners search results because no connection exists between the advertised products and services with the natural search results.

5 The opinion of the Seventh Circuit refusing to recognize Petitioners statutory and common law right of publicity flies in the face of prior rulings of this Court and other circuits, particularly insofar as the court of appeals decision is premised on the faulty notion that the First Amendment absolves Google. Advertising has been revolutionized by the internet. As one author has observed: Today Pepsico can ensure that every time a consumer does a Google search for its competitor, Coca-Cola, a consumer will simultaneously see advertisements for Pepsi products prominently displayed on search results pages.2 By a marketing device called keyword advertising search engines sell and advertisers purchase terms that will trigger the purchasers advertising when a user searches on those terms. Such ads typically include a link to the website of the advertiser. Purchasing a keyword phrase allows a company to circumvent the search engines usual relevancy factors and prominently display its Sponsored Links ad to internet users. Hearts on Fire Co., L.L.C. v. Blue Nile, Inc., 603 F. Supp. 2d 274, 279 (D. Mass. 2009).

Jim Edwards, Google on Trial: Brands Challenge Keyword Ads: Courts Mull Protection for Trademarked Terms, BRANDWEEK, May 21, 2007, at 6.

6 Search engine ad campaigns are vital to search engines and to many of the businesses that advertise on them. Businesses today routinely have internet websites which offer consumers the opportunity to purchase products and services. Search engine advertising is a multi-billion dollar industry in the United States.3 But what if a search engine shifts away from the use of only generic terms as keywords and towards the sale of non-generic terms, such as a persons name? That situation is presented in this litigation. A. Beverly Stayart Petitioner Beverly Stayart, a/k/a Bev Stayart (hereinafter Stayart), filed suit in April, 2010, against Respondent Google, Inc. (hereinafter Google) in federal district court in Milwaukee, Wisconsin. She sought damages and injunctive relief (both a preliminary and permanent injunction) for the alleged violation of her right of privacy under Wisconsins statutory and common law. She claimed Google was using her name, without written consent, to trigger the display of paid placement advertising on the internet, which accompanied search results for her. She asserted that she was a citizen of Wisconsin; that Google was a Delaware corporation with its principal place of business in Mountain View,

Frank Rose, Microsofts Bid for Yahoo Is All About Big-Brand Advertising, WIRED MAG., Mar. 4, 2008 (there is currently an $8 billion industry for search engine advertising).

7 California; and that the amount in controversy exceeded $75,000, exclusive of interest and costs, pursuant to 28 U.S.C. 1332(a). Stayart has an internet presence.4 She uses her names Beverly Stayart and Bev Stayart in all her endeavors on the internet. She has unique and distinctive personal names. She is the only Beverly Stayart and the only Bev Stayart on the internet. She is involved in public advocacy on behalf of animal protection programs throughout the United States and the world, including to save the wild horse population in the western United States; to save the baby seal population in eastern Canada; to prohibit the aerial shooting of wolves in the United States; to shut down puppy mills; and to prohibit abusive practices in factory farms and slaughterhouses. She is involved in genealogy research throughout the world. She is a contributor to an online discussion forum for genealogical and historical research concerning Native American peoples. Her periodic scholarly posts on this third-party website have generated approximately 20,000 hits (online visitors) during the last four years. This third-party website contains Stayarts photograph, address and other personal information.

On Googles motion to dismiss for failure to state a claim for relief, the facts are taken from Stayarts complaint, unless otherwise noted.

8 Two copyrighted poems written by Stayart appear on three Danish websites supporting the preservation of the baby seal population in eastern Canada, Stayarts names have commercial value for purposes of advertising because of her public advocacy on behalf of animals, her positive image, and the popularity of her scholarly posts on the Native American history and This genealogy website www.saponitown.com. commercial value has been created solely by Stayart through her investment of substantial time, money and effort. Her name has become a keyword phrase on the internet. According to Compete.com, an internet analytics firm, between January 15 and April 15, 2009, at least five destination websites have received internet traffic from searchers using Beverly Stayart as a search term. The same was true for the period between February 11 and May 12, 2009. B. Stayarts Prior Litigation On February 5, 2009, Stayart sued two affiliated search engines, Yahoo! Inc. and Overture Services, Inc., in federal district court in Milwaukee, Wisconsin, for false endorsement under the Lanham Act, and misappropriation of her name under Wisconsin law. See, Stayart v. Yahoo! Inc., 651 F. Supp. 2d 873 (E.D. Wis. 2009), affd 623 F. 3d 436 (7th Cir. 2010). The lower court held that she could not pursue a false affiliation claim under 43(a) of the Lanham Act, and declined to retain supplemental jurisdiction over her related claims for name appropriation under Wisconsin law. It was more efficient for Stayart to

9 litigate those claims in state court. 651 F. Supp. 2d at 888-889. In reviewing Stayarts claims under Wisconsin law, Chief Judge Rudolph T. Randa stated: It appears that Stayart could state a claim based on a pure appropriation theory, as distinguished from a pure right to publicity theory (footnote omitted). 651 F. Supp. 2d at 887. On January 10, 2010, Stayart sued Yahoo! in federal district court in Milwaukee, Wisconsin, for name appropriation in violation of Wisconsin law. In her complaint (Stayart v. Yahoo! Inc., Case No. 10-cv00043-LA (E.D. Wis.)), she alleged that after typing her name bev stayart in Yahoos search engine, Yahoos search assist box automatically displayed the suggested search bev stayart levitra. When Stayart clicked on this suggested search, Yahoo! then displayed two Sponsored Results ads for a website selling levitra on the first page of search results for bev stayart levitra. Multiple pages of Yahoos search results for bev stayart also contained a header and a footer. The headers and footers both stated Also try: bev stayart levitra. Levitra is the brand name for a nationally advertised oral treatment for male sexual dysfunction, marketed and distributed by Schering-Plough Corporation of Kenilworth, New Jersey. After this suit was commenced, Yahoos counsel contacted Stayarts counsel. He explained in a letter, dated February 11, 2010, that Yahoo! had an existing

10 block to prevent a persons name from being used as a suggested search with two male sexual dysfunction drugs, Cialis and Viagra. However, Yahoo! did not have a similar block to prevent a persons name from being used as a suggested search in connection with Levitra. Yahoos counsel then promised that, as a result of Stayarts suit against Yahoo, Yahoo has now blocked the search term levitra from appearing as a search assist or see also phrase in connection with [bev stayart]. C. Google Google is the worlds largest advertising agency. It offers a free search engine at www.google.com. When an internet searcher types in a few distinctive words about a topic called keywords Googles search engine will display a list of links to websites and other online content which may be relevant to the keywords. A searcher can then access items on the list by clicking on the links provided with the computers mouse. Googles core business is selling these keywords to advertisers. Almost all of its revenue is derived from the sale of keywords. Google makes no revenue from displaying search results. Under Googles AdWords program, advertisers can purchase popular keywords through an online auction where companies competitively bid against each other for page selection on search results pages. The ads are

11 small blocks of text targeted to the keyword phrase used in a search. These Sponsored Links ads appear immediately above or to the right of the natural or nonsponsored search results. Clicking on the link provided in the ad sends the internet searcher to the advertisers website. An advertiser pays Google a fee based on the total number of clicks on a Sponsored Links ad. Google displays a maximum of eleven Sponsored Links ads per page of search results. Another program Google offers is a Keyword Suggestion Tool, which it uses to recommend specific keywords to advertisers. Googles AdWords program also offers customers several matching options, including Broad Matching. If the keyword purchased is courts, and the keyword is broad matched, a purchasers ad could appear when users enter basketball court, federal court, court flooring, or even sport court. See, Rhino Sports, Inc. v. Sport Court, Inc., 2007 WL 1302745, * 2 (D. Ariz. 2007). For advertisers, more clicks yield increased website traffic and more potential website sales. No other method of advertising leads consumers to a company so quickly. For Google, more clicks yield increased advertising revenue. Google posted revenue of $10 billion from AdWords sales in 2006, or over 99% of its total income.

12 D. Googles Misappropriation of Stayarts Name Stayart has never given Google written permission to use or sell her name as a keyword to others to display internet ads. On February 1, 2010, Stayart typed her name bev stayart in Googles search box. An image was displayed on the first page of search results for her a picture pill ad for Levitra, consisting of a Levitra pill, the price ($1.67), and the scientific name and dosage (Vardenafil 20 mg.). This picture pill ad appeared directly adjacent to a photograph of Stayarts face, which also appeared on the first page of Googles natural search results for bev stayart. When she clicked on the Levitra picture pill ad, it opened the website http://www.indian-levitra.com, which is a website selling Levitra. Neither the picture pill ad nor the website contained any information about Stayart. On February 26, 2010, Stayart typed her name bev stayart in Googles search box. Google immediately suggested the search term bev stayart levitra in its drop down menu, without any prompting by Stayart. Clicking on bev stayart levitra on Googles drop down menu led to multiple search results pages for bev stayart levitra and to almost 2,000 Sponsored Links ads for products and services other than male sexual dysfunction drugs, such as bars, restaurants, doctors offices, vodka, liquor bottles, and so on.

13 On April 18, 2010, Stayart documented 1,970 of these Sponsored Links ads by first typing her name in Googles search box, then clicking on Googles suggested search bev stayart levitra in Googles drop down menu; next clicking on the link Show options at the top of the page; and then clicking on the option Related searches on the left-hand side of the page. She found the following fifteen Related searches on April 18, 2010, for bev stayart levitra (Complaint, 111-112): bev stayart bev stayart cialis bev stayart viagra bev stayart lavitra bev stayart ed bev stayart how long does levitra last bev stayart levitra sues bev stayart levitra automatically bev stayart levitra ago bev stayart levitra search greg stayart bev stayart lyrica bev stayart livitra bev stayart enzyte bev stayart levitra news With regard to these fifteen Related searches, the words that are underlined and the words in bold-face type were underlined and in bold-face type on the original search results Petitioner found on Google.

14 All of these Related searches opened multiple search result pages upon which Sponsored Links ads appeared, up to eleven per page. Thus, when Stayart individually clicked on each of these fifteen Related searches, a link More like this immediately appeared after each Related search. After clicking on this link, a new list of Related searches appeared, again with the same link More like this. Each time Stayart clicked on the More like this link, a new list of Related searches appeared, ad infinitum. Googles Related search how long does levitra last is a phrase which appears only in Sponsored Links ads on Google and never in any natural search results for Stayart, or in her prior litigation with Yahoo! Google concocted this phrase by piecing together the individual words how, long, does and last from search results, as shown by these words in bold. This phrase was designed expressly by Google to provide space for paid ads addressing the question, How long does levitra last? Google suggested bev stayart lyrica as a Related search for bev stayart levitra on April 18, 2010, and again, on April 27, 2010. Bev Stayart clicked on bev stayart lyrica, which opened the page titled bev stayart lyrica (Appendices 44 and 45 to Stayarts sworn declaration in support of her request for a preliminary injunction, and also attached as Appendix D to this Petition). Lyrica is the trade name for Pregabalin, a drug used to treat fibromyalgia. Lyrica is not used to treat male sexual dysfunction and Lyrica was never mentioned in any of Stayarts

15 lawsuits or in any blogs about Stayart. Stayart has absolutely no connection to the drug Lyrica. Bev Stayart does not suffer from fibromyalgia, nor has she ever commented online about fibromyalgia. Google uses Stayarts name to trigger a Sponsored Links ad for www.lyrica.com, a website owned by Pfizer, Inc., New York, N.Y., the manufacturer of Lyrica, on the first page of search results for bev stayart lyrica. The word lyrica never appears in the search results on this page, but bev stayart does appear. (Appendix D). The natural search results on the page bev stayart lyrica are not informational about bev stayart lyrica. The first two search results are blogs discussing Stayarts February 2009 lawsuit against Yahoo! The third natural search result is a blog discussing Stayarts January, 2010 lawsuit against Yahoo! None of these blogs mention Lyrica in connection with Stayart because Lyrica was not mentioned in her Yahoo! litigation. Googles primary purpose is to display the ad for www.lyrica.com, not to provide any relevant information about Bev Stayart and Lyrica. An internet searcher seeking information about Bev Stayart and Lyrica will find no natural search results discussing Bev Stayart and Lyrica after clicking on Googles Related search of bev stayart lyrica. Stayart found bev stayart ed as another Related search for bev stayart levitra on April 18, 2010. The

16 word ed is an acronym for erectile dysfunction. Google displays eleven Sponsored Links ads for erectile dysfunction remedies on the page bev stayart ed (the maximum number of ads Google allows per page). Stayart first clicked on this Related search on April 8, 2010 (Exhibit 26 to the Complaint, and also attached as Appendix E to this Petition). Two of the natural search results on this page are blogs about Stayarts February, 2009 lawsuit against Yahoo! (Appendix E). This lawsuit never mentioned erectile dysfunction or its acronym ed. The first blog mentions Bev Stayart and E.D. Wis. Complaint filed Feb. 5, 2009 (emphasis in original). The second blog mentions Beverly Stayart and E.D. Wis. (emphasis in original). Two of the natural search results on this page mention Beverly Stayart and Education (emphasis in original). Two of the natural search results mention only Beverly Stayart and Bev Stayart and do not mention ed at all (emphasis in original). Only one of the natural search results for bev stayart ed mentions Bev Stayart and ED. This is a blog about Stayarts January, 2010 lawsuit against Yahoo!, which states, in part: Oh, god, Oh, god! I am blind because of the picture of Bev Stayart. I think I am going to need ED meds to perform tonite . . . (emphasis in original).

17 Stayarts January 2010 lawsuit against Yahoo! never mentioned either the term erectile dysfunction or the acronym ed. An internet searcher seeking information about Bev Stayart and erectile dysfunction will find no natural search results on the page bev stayart ed about Bev Stayart and erectile dysfunction. The search results are exclusively about Bev Stayart, and not about erectile dysfunction. Again, Googles sole purpose is to display eleven Sponsored Links ads for erectile dysfunction treatments, not to provide any information about Bev Stayart and ed because no connection exists between Bev Stayart and ed or treatments for ed in the search results on this page. In her sworn declaration supporting her request for a preliminary injunction, Stayart provided the lower court with an alphabetical list of websites. Google used her name to display Sponsored Links ads for these websites, using the drop down suggestion bev stayart levitra, and the Related searches and the Wonder Wheel searches associated with bev stayart levitra.5 She found a total of 1,970 Sponsored Links ads. Below is a representative sample of these 1,970 websites:

The Google Wonder Wheel shows search terms related to a current search query. The current search query is centered at the hub of a wheel with eight spokes on the outside of the wheel displaying additional links.

18 1800petmeds.com/tramadol 4fibromyalgia.com Alcoholscreening.org Arthirtisxtreatment.com Bodyenergyshop.com Breastaugmentationyoucanafford.com Captainmorgan.com Clubhousepub.com Crestorprofessional.com Cymbalta.com Diabeticsupport.com Drugstore.com Eastbankwine.com Fibroawareness.org Fibrocenter.com Fibromyalgiaxtreatment.com Fibronol.com Gnc.com Hdhwine.com Lipitor.com Lyrica.com Managemyfibro.com Maxodermlotion.com Microliquor.com Milwaukeefibrodoc.com Milwaukeepodiatrist.com Neuropath-info.com Orivax.com Perfectwoman.com Plavix.com Popswine.com Revitabust.com Shopperswine.com Shopping.yahoo.com Smirnoff.com

19 Stemcellbreastenhance.com Stopyourfibronow.com Thehealthbeauty.store.com Therapysocks.com/peripheral-neuropathy Trypennystocks.com/PFE Vitorin.com Wineexpress.com Zenerx.com Stayart has no connection to any of these websites. But Google displays Sponsored Links ads for 1,970 websites which bear no connection to Stayart, her prior Yahoo! lawsuits or to any blogs or other information about her on the internet. Googles sole purpose is to display these Sponsored Links ads, not to provide relevant information about, for example, Bev Stayart and 1800petmeds.com/ tramadol when no connection exists between Bev Stayart and 1800petmeds.com/tramadol. Google displays Sponsored Links ads for six websites in this alphabetical list promoting the treatment of fibromyalgia. Bev Stayart has absolutely no connection to fibromyalgia, or to treatments for fibromyalgia. Google also displays Sponsored Links ads for Revitabust.com, Therapysocks.com, and Trypennystocks.com, all having nothing to do with Bev Stayart or her prior Yahoo! lawsuits. The accompanying natural search results to these Sponsored Links ads contain no informational or newsworthy content discussing Bev Stayart and fibromyalgia, Bev Stayart and alcohol screening, Bev Stayart and arthritis treatment, Bev Stayart

20 and breast augmentation you can afford, Bev Stayart and Crestor, Bev Stayart and Lipitor, or Bev Stayart and Maxoderm Lotion. Googles sole purpose is to display Sponsored Links ads for these 1,970 websites. Google moved in the lower court to dismiss Stayarts action for failure to state a claim for relief pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Google also opposed Stayarts motion for a preliminary injunction. That court, in an opinion published at 783 F. Supp. 2d 1055, granted the dismissal. This was on the grounds that (1) Stayart alleged no facts which suggest that her name has any commercial value or that Google derives any pecuniary benefit as result of the connection on the internet between her name and male sexual dysfunction remedies; and (2) Stayart alleged no facts which suggest that Google uses her name for any purpose much less that of advertising or trade (App. 14). In the courts view, Stayarts allegations established no more than Google enables internet users to access publicly available materials connected to Stayarts name. Her allegation that Google sells bev stayart levitra as a keyword to companies that sell male sexual dysfunction remedies was called unsupported by facts and implausible (App.15). In its decisions, the lower court failed to address 99% of the Related searches and Wonder Wheel searches in Stayarts Complaint and Declaration. Judge Adelman said:

21 [T]he search suggestions that plaintiff discovered after querying bev stayart levitra, such as bev stayart Cialis and bev stayart Viagra, merely reflect that Cialis and Viagra are related to Levitra. Because it is not a misappropriation to use a persons name primarily for the purpose of communicating information, displaying these search suggestions does not provide a basis for plaintiffs claims (App. 22-23). What about Googles Related search of bev stayart lyrica? Bev Stayart has no connection to the drug Lyrica, which is used to treat fibromyalgia. Lyrica is not a male sexual dysfunction drug. What about Googles Related search of bev stayart ed? The term erectile dysfunction and its acronym ed were never mentioned in Stayarts Yahoo! litigation. But on Googles Related Search page bev stayart ed, there is only one mention of ed in a blog. The nine other natural search results on this page contain no mention of erectile dysfunction or the acronym ED. These nine natural search results are exclusively about Stayart, not erectile dysfunction. Googles sole purpose is to display eleven Sponsored Links ads for erectile dysfunction. The lower court also denied Stayarts motion for a preliminary injunction without comment (App. 16). Stayart sought reconsideration of the lower courts decision, which was denied (App. 19).

22 Stayart appealed, and a Seventh Circuit panel affirmed in an opinion published at 710 F. 3d 719. That court held that the challenged phrase bev stayart levitra is a matter of public interest because Stayart sued Yahoo! over it in 2010. That phrase could not therefore serve as the basis of a misappropriation suit under the First Amendment (App. 2). That court also held that Stayart had not pled any facts showing a substantial connection between Googles use of her name and its efforts to generate advertising revenue. Therefore, the incidental-use exception to Wisconsins misappropriation law applied (App. 2). In its analysis, the Seventh Circuit excluded all but two (bev stayart cialis and bev stayart viagra) of Googles thousands of Related searches for bev stayart levitra. The Seventh Circuit merely replicated the unsound approach of the lower court. Stayart now petitions this Court to grant a writ of certiorari as to the Seventh Circuits opinion because of Petitioners right of publicity under Wisconsin law. REASONS FOR GRANTING THE WRIT The right of publicity is widely recognized throughout the country. 1 J. Thomas McCarthy, THE RIGHTS OF PUBLICITY AND PRIVACY 1:3-4 (2nd ed. 2007). It serves to prevent the unjust enrichment of commercial appropriators, to provide an incentive to creators, and to protect the public from deception. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573-76 (1977).

23 Wisconsin recognizes the right of publicity. Its privacy statute, Wis. Stat. 995.50, includes a prohibition on misappropriation, which involves [t]he use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person . . . Id. 995.50(2)(b). Wisconsin common law also prohibits such misappropriation. Hirsch v. S. C. Johnson & Son, Inc., 90 Wis. 2d 379, 280 N.W. 2d 129 (1979). The Wisconsin Supreme Court explained: A cause of action for appropriation of a persons name for trade purposes is different in nature from other privacy torts. . . . The appropriation tort . . . protects primarily the property interest in the publicity value of ones name. 90 Wis. 2d 379, 383, 387, 280 N.W. 2d 129, 130, 132 (1979). Hirsch was decided under Wisconsins common law because the statute (originally enacted as 895.50) became effective only after the cause of action in Hirsch arose. Hirsch, 90 Wis. 2d at 387. I. THE COURTS ARE IN CONFLICT ABOUT THE TEST FOR DETERMINING WHEN PUBLICITY RIGHTS PREVAIL OVER FIRST AMENDMENT INTERESTS.

Zacchini is the sole case from the Supreme Court to directly address the right of publicity. The case came to the Supreme Court by way of certiorari from the

24 Ohio Supreme Court under Ohio common law. See, Zacchini, 47 Ohio St. 2d 224, 351 N.E. 2d 454 (1976), revd 433 U.S. 562, 572 (1977). The plaintiff, Zacchini, was the performer of a human cannonball act who sued a television station that had broadcast his entire performance on the evening news without his consent. See, 433 U.S. at 463-64. This Court found in favor of Zacchini, holding that the First Amendment did not protect the television station against a right of publicity claim under Ohio common law. This Court instructed that the states interests in enforcing publicity rights must be weighed against First Amendment concerns. 433 U.S. at 57578. According to the Court, [w]herever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performers entire act without his consent. 433 U.S. at 574-75. This case presented a unique set of facts. The Court twice stressed that it was not deciding the broader question of when a plaintiff may sue the defendant for using plaintiffs name, likeness, or other attributes of identity the more typical right of publicity claim. 433 U.S. at 573 n. 10, 576. Because this Court has addressed (and upheld) the constitutionality of right of publicity in only this case, the outcome of other First Amendment challenges to publicity rights depends on how broadly or narrowly

25 courts should construe Zacchini. Given this uncertainty, it is not unexpected that the resolution of publicity claims often appears inconsistent. Courts have developed different tests for publicity rights claims. There are at least five basic approaches in which courts have applied the First Amendment to the right of publicity, including (1) the transformative use test; (2) the predominant purpose test; (3) the actual malice standard; (4) the relatedness approach; and (5) a general balancing approach. The transformative test, applied in California, asks whether the plaintiffs identity has been altered in a way that is expressive, as opposed to a communication in which persona is used for purely commercial gain, with nothing new added. Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P. 3d 797, 807-08 (Ca. 2001), cert. denied, 534 U.S. 1078 (2002). The predominant purpose test focuses on whether a defendants speech is primarily commercial or primarily expressive. Doe v. TCI Cablevision, 110 S.W. 3d 363, 373-74 (Mo. 2003); Joe Dickerson & Assocs., LLC v. Ditmar, 34 P. 3d 995, 1003 (Colo. 2001); Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 90910 (D. N.J. 1986). The Ninth Circuit has adopted an actual malice test. When celebrity identities are used in commercial speech, publicity rights are enforced. But where noncommercial speech is involved, publicity rights are enforced only when actual malice is demonstrated.

26 Hoffman v. Capital Cities/ABC, Inc., 255 F. 3d 1180, 1188-89 (9th Cir. 2001). The relatedness test, adopted in Kentucky and the Second and Sixth Circuits, looks at the relationship between the use of a persons identity and any work traditionally protected by the First Amendment. If the work is not related to the identified person, the right of publicity interests will outweigh First Amendment interests. Parks v. LaFace Records, 329 F. 3d 437, 46061 (6th Cir. 2003); Rogers v. Grimaldi, 875 F. 2d 994, 1004-05 (2nd Cir. 1989); Montgomery v. Montgomery, 60 S.W. 3d 524, 529-30 (Ky. 2001). The Sixth Circuit also has used, together with the Eighth, Tenth and Eleventh Circuits, a balancing test which weighs societys interests in a persons identity against that persons particular economic and noneconomic interests. ETW Corp. v. Jireh Publg, Inc., 332 F. 3d 915, 938 (6th Cir. 2003); C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Players Advanced Media, L.P., 505 F. 3d 818, 823 (8th Cir. 2007), cert. denied 128 S. Ct. 2872 (2010); Toffoloni v. LFP Publishing Group, LLC, 572 F. 3d 1201, 1208 (11th Cir. 2009), cert. denied 130 S. Ct. 1689 (2010). Professor McCarthy summarizes the law in this area by noting that [c]lear answers to these questions have continued to elude both the Supreme Court and constitutional scholars for many years. 2 J. Thomas McCarthy, THE RIGHTS OF PUBLICITY AND PRIVACY 8.23, at 130-31 (2nd ed. 2007).

27 The enforceability of publicity rights can thus vary significantly from jurisdiction to jurisdiction a result that is unfair to individuals and businesses alike. Applying the right of publicity consistently is desirable because those decisions will have a tremendous impact on both internet-based commerce and on the overall development of publicity law. Only this Court can bring clarity to this important question of federal law, and it should grant certiorari to do so now. II. IN CONFLICT WITH THE DECISION BELOW, THE EIGHTH, TENTH AND ELEVENTH CIRCUITS REQUIRE A FACTSENSITIVE BALANCING BETWEEN PUBLICITY RIGHTS AND FIRST AMENDMENT INTERESTS.

The opinion of the Seventh Circuit in this case is in direct conflict with opinions of the Eighth, Tenth and Eleventh Circuits in that those courts have required a fact-sensitive balancing test in resolving the tension between the First Amendment and publicity rights. Here, the Seventh Circuit held that Stayarts January, 2010 lawsuit against Yahoo! (involving the search assist phrase bev stayart levitra) is a matter of public interest because of her litigation (App. 7). This is because clicking on this search query on Google will sometimes lead to the complaint against Yahoo! filed by Stayart, as well as related websites (App. 6-7). But the Seventh Circuit unjustly ended its analysis prematurely. The court never performed any balancing between Stayarts right of publicity and the First

28 Amendment. Google recommends the phrase bev stayart in connection with levitra to its AdWords customers to display thousands of Sponsored Links ads. The vast majority of these 1,970 ads are not for sexual dysfunction remedies, and give Google no First Amendment protection because there is no connection between the ads and the natural search results regarding Stayart. The Seventh Circuits approach also ignores the fact that, after filing her 2010 suit against Yahoo, Yahoo! agreed to block any future search assist or see also use of bev stayart in combination with the drug Levitra. The Seventh Circuit adopted an absolutist approach to the First Amendment. According to their distorted view, as long as a defendant can show some public interest in the use of a persons name, no matter how de minimis, other uses which have no public interest component are also justified even if solely for purposes of advertising or trade. The Seventh Circuits holding renders the misappropriation tort under Wis. Stats. 995.50(2)(b) a nullity because any advertising or trade purpose can be easily transformed to dissemination of information under the guise of free speech. Professor McCarthy explains that [i]mposing liability for the unpermitted taking of ones identity to attract attention to the product or its advertisement in no way impairs the constitutional right to the free flow of commercial information. 2 J. Thomas McCarthy, THE RIGHTS OF PUBLICITY AND PRIVACY 7:3

29 (2nd ed. 2007) (emphasis added; quoting citation omitted). The Seventh Circuits opinion directly conflicts with the opinion of the Eleventh Circuit in Toffoloni v. LFP Publishing Group, LLC, 572 F. 3d 1201 (11th Cir. 2009), cert. denied 130 S. Ct. 1689 (2010). There, a professional wrestler, Christopher Benoit, murdered his wife Nancy and their son in June, 2007. He then committed suicide. These deaths attracted considerable media coverage. Nancy Benoit was a model and professional woman wrestler. Approximately twenty years earlier, she posed nude for a photographer. Immediately after this photo session, she asked that the photos be destroyed, but the photographer did not do so. He later conveyed the photos to an adult-oriented magazine, where they were published in the March, 2009 issue, accompanying an article concerning her death. The administrator of Nancy Benoits estate filed suit in Georgia state court against the magazine, seeking damages for violation of decedents posthumous right of publicity. It was asserted that the photos were used commercially for advertising. The United States District Court for the Northern District of Georgia granted a motion to dismiss the complaint for failure to state a claim under F. R. Civ. P. 12(b)(6). The court held that the story of decedents life and death, and nude photographs, were newsworthy and outside the scope of Georgias right of publicity.

30 The administrator appealed. The Eleventh Circuit reinstated the complaint and reversed the dismissal. The court held that the photographs taken more than 20 years before the publication were neither related in time or concept to the story of admitted public interest, and, therefore, do not qualify for the newsworthy exception to the right of publicity. 572 F. 3d at 1213. The Eleventh Circuit explained that the right of privacy protected by the due process clause of the Fourteenth Amendment was established and as fundamental as the right of freedom of speech and the press explicitly set forth in the First Amendment. Since the right of privacy impliedly guaranteed by the due process clause exists on the same constitutional plane as the explicit rights stated under the First Amendment, the court reasoned that courts are required to engage in fact-sensitive balancing, with an eye toward what is reasonable and that which resonates with the community morals, in order to protect the constitution as a whole. 572 F. 3d at 12071209 (emphasis added). After balancing the facts alleged in the complaint of the administrator, the Eleventh Circuit found that the complaint stated a valid claim under Georgia common law for the tort of infringement of the right of publicity. Specifically, the court said that because defendants focus was on decedents nude photographs, which were wholly unrelated as a matter of legitimate public interest her murder by her husband decades after the photos were taken they did not qualify for the newsworthiness exception to the right of publicity. Id.

31 at 1213. The court remanded the matter to the trial court for further proceedings. Id. The decision of the Seventh Circuit directly conflicts with the opinion of the Tenth Circuit in Cardtoons, L.C. v. Major League Baseball Players Assn., 95 F. 3d 959 (10th Cir. 1996). In Cardtoons, the Tenth Circuit held that a companys right to produce parody baseball trading cards outweighed the right of publicity of the players under Oklahoma law. 95 F. 3d at 976. The court found that the trading cards in fact infringed on the associations publicity rights. 95 F. 3d at 968, 970-76. The court said that in considering whether the First Amendment takes precedence over a claimed right of publicity, courts balance the magnitude of restricting the expression at issue against the asserted government interest in protecting the right of publicity. Id. at 972. In performing such a balancing here, the court found that parody trading cards were an important form of entertainment and social commentary that deserved First Amendment protection. Id. at 976. The court further found that the traditional economic and noneconomic justifications for the right of publicity were negligible in the context of parody. Id. The decision of the Seventh Circuit directly conflicts with the opinion of the Eighth Circuit in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Players Assn, 505 F. 3d 818 (8th Cir. 2007), cert. denied 128 S. Ct. 2872 (2008).

32 In that case, the producer of fantasy baseball games, C.B.C., requested a declaratory judgment that it had First Amendment protection to use the names and game statistics of major league baseball players without a license. 505 F. 3d at 820. A competitor who had been granted such a license to use this information filed a counterclaim, asserting that C.B.C. violated the publicity rights of the players and their association. The Eighth Circuit held that although the players had provided enough evidence in opposing summary judgment to establish their claim under Missouri law, C.B.C.s First Amendment rights took precedence, applying a balancing analysis. Id. at 834. The Eighth Circuit noted that the information used by C.B.C. was in the public domain; courts previously had recognized the value of information about baseball and its players; and the economic interests of the players was not jeopardized because they were already highly compensated. Id. at 823-24. The balancing analysis approved by this Court in Zacchini, and adopted by the Eighth, Tenth and Eleventh Circuits, should have been adopted by the Seventh Circuit. The right of publicity is a recognized intellectual property right. Almeida v. Amazon.com, Inc., 456 F. 3d 1316, 1322 (11th Cir. 2006). The Seventh Circuits approach grossly under protects intellectual property rights. The Seventh Circuit has previously endorsed a balancing approach in a copyright infringement case, but irrationally failed to do so here. Cf. In re Aimster Copyright Litig., 334 F.

33 3d 643, 649-650 (7th Cir. 2003), where the court stated that when substantial non-infringing uses, present or prospective are demonstrated, courts should make some estimate of the respective magnitudes of these uses, and engage in a balancing of costs and benefits. The author (Judge Ann C. Williams) of the Seventh Circuits opinion in Stayart v. Google, Inc., was also a member of the three-judge panel which issued the Seventh Circuits opinion in the Aimster case. Google displays at most twenty natural search results containing websites or blogs dealing with Stayarts 2010 Yahoo! litigation. These insubstantial, non-infringing uses of Stayarts name are dwarfed by the thousands of Sponsored Links ads using Stayarts name to display ads for wine, whiskey, pubs, podiatrists, therapy socks, breast augmentation, and penny stocks, among thousands of others. Stayart found a total of 1,970 such Sponsored Links ads on just one day alone, on April 18, 2010! Googles sole purpose is to display these 1,970 ads, because no connection exists between these ads and the natural search results for Stayart. The First Amendment does not protect Google when no connection exists between Bev Stayart and, for example, therapy socks, yet Google uses her name to display a Sponsored Links ad. Cf. Titan Sports, Inc. v. Comics World Corp., 870 F. 2d 85, 88-89 (2nd Cir. 1989) (an insignificant public interest aspect of a publication cannot exempt it from the reach of [the privacy statute] where the primary aspect of the product is commercial).

34 The right of publicity is implicated whenever the name, likeness, biographical profile or accomplishments of any person is used in connection with any commercial product not associated with the dissemination of news or articles about that person. Otherwise newsworthy material is not protected in the content of advertising. As held by the Ninth Circuit: While Lew Alcinders basketball record may be said to be newsworthy, it is not automatically protected. GMC used the information in the context of an automobile advertisement, not in a news or sports account. Abdul-Jabbar v. General Motors Corp., 85 F. 3d 407, 416 (9th Cir. 1996). See also, Doe v. McFarlane, 207 S.W. 3d 52 (Mo. Ct. App. E.D. 2006) (appeal after retrial, affirming jury award of damages for use of hockey players name as comic book character; [t]he predominant purpose of the use of the name Tony Twist was to sell comic books and related products and not to make an expressive comment about Twist the hockey player. Therefore, use of the name is not entitled to First Amendment protection.); Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 805 (N.D. Cal. 2011) ([b]ecause Facebooks publication of Plaintiffs Likes is alleged to be for commercial advertising purposes and not part of any news, public affairs, or sports broadcast or account, or any political campaign, the Court does not find it appropriate to dismiss the claim under the newsworthy exception [under Californias right to publicity statute]).

35 This continuous and purposeful use of Stayarts name in Googles keyword advertising program is a use that is not informational. It is a use that is undertaken as part of advertising or solicitation for patronage. When an internet searcher looks for information about bev stayart, Googles software triggers Sponsored Links advertising only because it is paid by advertisers each time someone searching for bev stayart clicks on the Sponsored Link. As articulated by one author (Paul Gilster, DIGITAL LITERACY (1997)) 10: Advertising on the internet can be deceptive; a web pages sponsors can use content as bait, concealing the underlying pitch. Issues of reliability, conflict of interest, and trust abound. The Wisconsin Legislature, having found that commercial misappropriation of the value of another persons name is harmful and should be prohibited, included subsection (2)(b) when it enacted the Wisconsin privacy statute. This regulation of advertising is well within Wisconsins proper sphere of economic regulation. Section 995.50(2)(b) clearly advances the States legitimate interest in preventing the exploitation of anothers name for an advertising or trade purpose. Supreme Court precedent reinforces this very point. [T]he States does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity. Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456 (1978). Ohralik commented with regard to lawyer

36 advertising that [a] lawyers procurement of remunerative employment is a subject only marginally affected with First Amendment concerns. It falls within the states proper sphere of economic and professional regulation. Id. at 459 (emphasis added). The suggested search bev stayart levitra does not come from a third party it originates with Google. Google then uses Stayarts name to draw internet searchers to thousands of paid ads for unrelated commercial websites. Google capitalizes on the desire of searchers to find information about Stayart. But Googles primary purpose is to display ads, not to provide information about Stayart. Simply put, a persons name is her property. It is not merely a word or generic concept which can be bought or sold by anyone on the internet. The Petitioner is right that her name cannot be used without her written permission to trigger thousands of Sponsored Links ads on Google. Cf. Brown Chemical Co. v. Meyer, 139 U.S. 540, 544 (1891): A mans name is his own property, and he has the same right to its use and enjoyment as he has to any other species of property. III. GOOGLES SPONSORED LINKS ADS ARE NOT INCIDENTAL, THEREBY DEPRIVING GOOGLE OF FIRST AMENDMENT PROTECTION.

The Seventh Circuit has also misinterpreted the standards for incidental use under the First Amendment.

37 Where a plaintiffs name and likeness is used without intent to obtain a commercial advantage, but for some other purpose, that use is incidental and does not violate the right of publicity. Doe. v. TCI Cablevision, 110 S.W. 3d 363, 375 (Mo. 2003) (en banc), cert. denied, 540 U.S. 1106 (2004), appeal after remand, 2006 WL 1677856, 207 S.W. 3d 52 (Mo. App. 2006). The incidental use exception is based on the First Amendment. See, e.g., Cardtoons, L.C. v. Major League Baseball Players Assn., 95 F. 3d 959, 968 (10th Cir. 1996) (noting that Oklahomas publicity statute has an exception roughly analogous to the First Amendments concept of incidental use); Stern v. Delphi Internet Services Corp., 165 Mis. 2d 21, 626 N.Y.S. 2d 694, 700 (S. Ct., N. Y. Cty. 1995): [I]t is clear that what drives the incidental use exception is the First Amendment interest in protecting the ability of news disseminators to publicize, to make public, their own communications (citation omitted). The rationale for the incidental use exception is that because an incidental use has no commercial value, allowing recovery to anyone briefly depicted or referred to would unduly burden expressive activity. Pooley v. National Hole-in-One Assn., 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000). For example, in Merle v. Sociological Research Film Corp., 166 A.D. 376, 152 N.Y.S. 829 (1 Dept. 1915), a motion picture showed a factory building upon which there was a sign bearing the name and business of the plaintiff. The court found no violation of New Yorks privacy statute had occurred, as the use was merely an incidental part of a photograph of an actual building.

38 But in Staruski v. Continental Telephone Co. of Vermont, 154 Vt. 568, 581 A. 2d 266, 269 (1990), an ad featured plaintiff falsely attributing defendants advertising copy to her solely because of who she was. The Supreme Court of Vermont found that defendants use was not incidental, and that the plaintiff could recover for wrongful invasion of privacy. The strategy . . . was to obtain a commercial benefit and, perhaps, also provide a public service announcement, -- from the association of the ads text with the names and photographs of select employees. Here, there is a direct connection between Googles use of Stayarts name and Googles commercial purpose, as in Staruski. Stayarts complaint alleges that (1) she has a unique and distinctive name; (2) she has an internet presence; (3) her name has commercial value for purposes of advertising and trade; (4) her name has become a keyword phrase on the internet; (5) Google deliberately uses Stayarts name as part of the keyword phrase bev stayart levitra under its AdWords Program to trigger thousands of Sponsored Links ads on search results for her; and (6) advertisers are free riding on Stayarts fame, reputation and goodwill by using her name and likeness, while Google has participated in and encouraged such efforts through its online auction and technology. Here, the Seventh Circuit held that the incidental use exception under the First Amendment immunized Google from liability under Wisconsin law for name appropriation (App. 8):

39 Nothing in Stayarts thirty-page complaint 139 pages with attachments suggests that the connection between Stayarts name and Googles efforts to generate revenues through its use is substantial rather that incidental. . . . [quoting Stayart v. Yahoo! Inc., 2011 WL 3625242, at *2.] In fact, Stayarts complaint and the hundreds of pages of attachments and supplemental documents she has filed suggest that the term levitra and not Stayarts name triggers the erectile dysfunction ads. But even if Googles use of her name were substantial, it would still be entitled to the public interest exception. This conclusion, made as a matter of law, is erroneous. Google makes no expressive comments about Stayart one of the signs of an incidental use. Googles predominant purpose is the commercial use of the keyword phrase bev stayart levitra to display thousands of ads for its AdWords customers on search results for Stayart. Google takes advantage of Stayarts unique and distinctive name, as well as its value and goodwill, to attract the attention of consumers searching for information about her on the internet. This is a meaningful and purposeful use of Stayarts name. See, Henley v. Dillard Dept Stores, 46 F. Supp. 2d 587, 592 (N.D. Tex. 1999) (holding that incidental use defense did not apply where the defendant used the value associated with a well-known musicians name in a wordplay in order to attract consumers attention); James v. Bob Ross Buick, Inc., 855 N.E. 2d 119, 123 (Oh. Ct. App. 2006) (use of plaintiffs name was not incidental but was actionable because the name had commercial value); AFL Philadelphia LLC v. Krause, 639 F. Supp. 2d 512, 530-

40 31 (E.D. Pa. 2009) (use was not incidental because it was for the purpose of taking advantage of the reputation and good will that Plaintiff had developed). The conclusion of the Seventh Circuit further ignores Googles conduct implementing a business model aimed at facilitating misappropriation, described in the Complaint. Google is not merely hosting thirdparty content. Google makes a specific recommendation of a personal name (bev stayart) in connection with levitra to its advertisers and then rewards them by including their ads on its Sponsored Links. Google does more than simply display content it participates in it by the recommendation and then actively promotes it. The Seventh Circuits assertion that levitra, rather than Stayarts name, triggers sexual dysfunction ads, is refuted by comparing the ads with the search term entered. Google displays picture pill ads for both Levitra and Viagra on the first page of Stayarts search results when only the search term bev stayart is typed in Googles search box. Similarly, Google displays pictures pill ads for Nexium and Soma (non-sexual dysfunction drugs) on the first page of Stayarts search results when only the search term bev stayart is typed in Googles search box. The application of the incidental use exception under the First Amendment to the right of publicity under state law is an important federal question. It has never been addressed by this Court or the Wisconsin Supreme Court. The holding of this question by the Seventh Circuit here is in direct conflict with the opinion of the Vermont Supreme

41 Court in Staruski v. Continental Telephone Co. of Vermont, 154 Vt. 568, 581 A. 2d 266 (1990). CONCLUSION Googles use of Stayarts name is calculated. It is neither informational nor incidental under the First Amendment. Googles advertising use of Stayarts name is accordingly not immunized from infringement of the right of publicity. The Seventh Circuits decision conflicts with opinions from the Eighth, Tenth and Eleventh Circuits, as well as the Vermont Supreme Court. This case is of universal importance because timely resolution by this Court of these conflicts will preclude future years of inconsistencies in the lower courts without ever attaining final consensus. The decision of the Seventh Circuit affirming the dismissal of Stayarts Complaint is tantamount to issuing a license to all search engines to use the pretext of free speech to conscript anyone they wish as a forced sponsor of products and services on the internet. This is not and should not be the law. The petition for certiorari should be granted. The dismissal of Stayarts Complaint should be reversed, and this matter should be remanded to the lower court for further proceedings.

42 Respectfully submitted, GREGORY A. STAYART Counsel of Record 7505 Stillman Valley Road Rockford, IL 61109 (262)745-7395 gastayart@live.com Counsel for Petitioner

APPENDIX

i APPENDIX TABLE OF CONTENTS Appendix A: Opinion/ Final Judgment, In the United States Court of Appeals for the Seventh Circuit (March 6, 2013) . . . . . . . . . . App. 1 Decision and Order/ Judgment in a Civil Case, In the United States District Court for the Eastern District of Wisconsin (March 8, 2011) . . . . . . . . . App. 11 Decision and Order, in the United States District Court for the Eastern District of Wisconsin (August 17, 2011) . . . . . . . . App. 19

Appendix B:

Appendix C:

ii Appendix D: Appendices 44 and 45 to Stayart Declaration Screen shots (two) of Google search results bev stayart lyrica April 27, 2010 Filed in District Court on May 27, 2010, as Appendices 44 and 45 to Stayarts Declaration in Support of Motion for Preliminary Injunction (Fold Out Exhibit) . . . . . . . App. 26 Appendix E: Exhibit 26 to the Complaint Screen shots of Google search results bev stayart ed April 8, 2010 Filed in District Court on April 20, 2010, as Exhibit 26 to Stayarts Complaint (Fold Out Exhibit) . . . . . . . App. 27

App. 1

APPENDIX A In the United States Court of Appeals For the Seventh Circuit No. 11- 3012 [Filed March 6, 2013] ______________________________________ BEVERLY STAYART, a/k/a BEV STAYART ) ) Plaintiff-Appellant, ) ) v. ) ) GOOGLE INC., ) ) Defendant-Appellee. ) ______________________________________ ) Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:10-cv-00336 Lynn Adelman, Judge. _________________ ARGUED MARCH 27, 2012 DECIDED MARCH 6, 2013 _________________ Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.

App. 2 WILLIAMS, Circuit Judge. Dissatisfied with the results of internet searches for her name, Beverly Stayart has launched a legal campaign against internet search engines. In this, her third lawsuit, she contends that Google is in violation of Wisconsin misappropriation laws because a search for bev stayart may lead to a search for bev stayart levitra, which in turn may lead to websites advertising drugs to treat male erectile dysfunction. The district court dismissed her lawsuit for failure to state a plausible claim for relief and she appeals. However, Stayart has not articulated a set of facts that can plausibly lead to relief under Wisconsins misappropriation laws because the use she alleges falls within two exceptions: public interest and incidental use. First, Stayart made the challenged search phrase bev stayart levitra a matter of public interest by suing Yahoo! over it in 2010. And as a matter of public interest, that phrase cannot serve as the basis of a misappropriation suit. In addition, Stayart has not pled any facts showing a substantial connection between Googles use of her name and its efforts to generate advertising revenues, triggering the incidental-use exception to Wisconsins misappropriation laws. For these reasons, we affirm. I. BACKGROUND Google Inc. is a Delaware corporation with its principal place of business in California. The companys internet search engine, also called Google, compiles information available on the internet into a single database, enabling users to streamline and expedite searches for online content. When an internet user

App. 3 enters descriptive words or phrases into the search engine, Google generates a list of search results that are relevant to the users query. While the search engine is free to users, Google generates revenue from its services by offering paid placement advertising on the search results pages. Appellant Beverly Stayart, an adult citizen of Elkhorn, Wisconsin, claims that she is widely known on the internet as a respected scholar of genealogy and a positive and wholesome leader in the animal rights movement. She believes that she is the only Bev Stayart or Beverly Stayart on the internet, that her name carries significant commercial value, and that it is a competitive keyword phrase for internet search engines. In April 2010, Stayart filed a state-law misappropriation claim against Google, alleging that the company used her name without permission to generate financial revenue through online trade and advertising. Specifically, Stayart alleges that various features of Googles search engine violate her right of publicity by using her name to trigger sponsored links, ads, and related searches to medications, including Levitra, Cialis, and Viagra, all of which are trademarks of nationally advertised oral treatments for male erectile dysfunction. Stayart directs her allegations at three core features of Googles search engine: Google Suggest, AdWords and Sponsored Links, and Related Searches. Google Suggest is an automated tool that recommends additional search queries when a user begins to type descriptive words or phrases into the search engine. These additional search queries derive from an algorithm that tracks and analyzes all queries run by

App. 4 internet users. Google Suggest lists the most popular combination of terms used by individuals conducting identical or related search queries. For example, if a user types chicago into Googles search engine, even before the user presses enter, Google recommends several searches: chicago tribune, chicago bears, chicago weather, and chicago sun times. One of Stayarts complaints is that when a user enters bev stayart into Googles search engine, Google Suggest automatically recommends an additional search for bev stayart levitra. Googles paid placement advertising program is called AdWords. Under this program, an advertiser can bid on specific keywords or keyword phrases. When an internet user conducts a search for one of the keywords or keyword phrases, Google automatically embeds up to eleven sponsored links to the advertisers website on each search results page. Google earns a fee each time a user clicks on a sponsored link. Stayart further complains that a search for bev stayart levitra triggers the display of a Google Sponsored Link for Levitra on the search results page. Googles search results page frequently displays links to additional search queries related to the one executed by the user. An internet user can access these Related Searches on the left-hand side of the search page under show options or by clicking on a link that says more like this. On the search results page for the query bev stayart levitra, Google displays links to additional searches related to bev stayart and Levitra. According to Stayart, many of these links lead to even more Google Sponsored Links for a wider variety of erectile dysfunction treatments.

App. 5 Stayarts complaint alleges that Google violated Wisconsin Statute 995.50(2)(b), which protects an individuals right of privacy, by misappropriating her name to generate financial revenue through online trade and advertising. She also asserted a common-law misappropriation claim. The district court granted Googles motion to dismiss with prejudice, finding that Stayart failed to state a plausible claim for relief because Google merely reports the results of its search of publicly available websites. Stayart appeals. II. ANALYSIS We review the district courts decision on a motion to dismiss for failure to state a claim de novo. Wilson v. Price, 624 F.3d 389, 391 (7th Cir. 2010). Wisconsin recognizes a right of privacy, Wis. Stat. 995.50, that includes a prohibition on misappropriation, or [t]he use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person . . . . Id. 995.50(2)(b). Wisconsin common law also prohibits misappropriation. See Hirsch v. S.C. Johnson & Son, Inc., 280 N.W.2d 129, 134 (Wis. 1979). We recently explored the history of Wisconsins misappropriation provision and noted that it was modeled on New Yorks privacy statute. See Bogie v. Rosenberg, ___ F.3d ___, 2013 WL 174113, at *3 (7th Cir. Jan. 17, 2013). And because Wisconsins law shall be interpreted in accordance with the developing common law of privacy . . . with due regard for maintaining freedom of communication, privately and

App. 6 through the media, Wis. Stat. 995.50(3), we determined that sound analysis of Wisconsins privacy statute includes consideration of the developing common law of privacy in Wisconsin, as well as in other jurisdictions, especially in New York. Bogie, 2013 WL 174113, at *3. Our analysis of Wisconsins misappropriation law in Bogie led us to affirm Wisconsins recognition of the newsworthiness or public interest exception to its misappropriation law. Id. at *8; see Rand v. Heart Corp., 298 N.Y.S.2d 405, 409 (App. Div. 1969), affd 257 N.E.2d 895, 896 (N.Y. 1970) (stating that phrases such as advertising purposes and for the purposes of trade . . . must be construed narrowly and not used to curtail the right of free speech, or free press, or to shut off the publication of matters newsworthy or of public interest, or to prevent comment on matters in which the public has an interest or the right to be informed). In Bogie, we also concluded that the developing right of privacy includes an incidental use exception that applies in Wisconsin. Bogie, 2013 WL 174113, at *9. These exceptions apply to render Stayarts misappropriation claims against interest search engines futile. [W]here a matter of legitimate public interest is concerned, no cause of action for invasion of privacy will lie. Van Straten v. Milwaukee Journal Newspaper-Publisher, 447 N.W.2d 105, 112 (Wis. Ct. App. 1989). And the applicability of the public interest exception presents a question of law. Bogie, 2013 WL 174113, at *8. Courts broadly define matters of public interest and have applied the exception to consumer interest articles, scientific interest pieces, political reports, social trends, movies, and documentaries. Id.

App. 7 (collecting cases); Finger v. Omni Publns Intl, Ltd., 566 N.E.2d 141, 144 (N.Y. 1990). The search term bev stayart levitra is a matter of public interest primarily because Stayart has made it oneand, given the current lawsuit, ensures that it remains so. In January 2010four months before she filed this lawsuitshe filed a lawsuit against Yahoo! in federal court, alleging that its search assist feature suggested the phrase bev stayart levitra when she typed bev stayart, in violation of Wisconsins misappropriation law. See Stayart v. Yahoo! Inc., No. 2:10-cv-00043-LA (E.D. Wis. filed Jan. 19, 2010). In her complaint in the instant case, Stayart alleges that Googles misappropriation of Bev Stayarts name and likeness began at least as early as February 1, 2010 . . ., the month after she sued Yahoo! over the same search phrase. And all the searches she attaches to her complaint were executed in April 2010. Court documents, including Stayarts complaint and the district courts 2011 order dismissing that complaint, are matters of public interest. Cf. In re Contl Ill. Sec. Litig., 732 F.2d 1302, 1314 (7th Cir. 1984) (The public has an interest in the fairness of courts and judges, and the public has a right of access, guaranteed by the first amendment, to information before the court relating to matters of public interest.). It follows that if court documents warrant the public interest exception, the search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception. To the extent that Stayart has or would argue that Googles profit motives undermine the reliance on the public interest argument, the exception

App. 8 applies even when the entities sharing the information do so largely, and even primarily, to make a profit. Davis v. High Socy Magazine, 457 N.Y.S.2d 308, 313 (App. Div. 1982). The incidental use exception also limits the application of Wisconsins misappropriation law. Bogie, 2013 WL 174113, at *9. For use of a persons name for advertising or trade purposes to be actionable under Wisconsin law, there must be a substantial rather than an incidental connection between the use and the defendants commercial purpose. Id. (quoting Stayart v. Yahoo! Inc., 2011 WL 3625242, at *2 (E.D. Wis. Aug. 17, 2011)). Nothing in Stayarts thirty-page complaint139 pages with attachmentssuggests that the connection between Stayarts name and Googles efforts to generate revenues through its use is substantial rather than incidental. Id. (quotation marks omitted). In fact, Stayarts complaint and the hundreds of pages of attachments and supplemental documents she has filed suggest that the term levitra and not Stayarts name triggers the erectile dysfunction ads. But even if Googles use of her name were substantial, it would still be entitled to the public interest exception. III. CONCLUSION For the reasons set forth above, we AFFIRM the district courts decision granting Googles motion to dismiss. __________________________________________________ 3-6-13

App. 9 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604 [SEAL] Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov FINAL JUDGMENT March 6, 2013 BEFORE: JOEL M. FLAUM, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge BEVERLY STAYART, also known as BEV STAYART, Plaintiff - Appellant No.: 11-3012 v. GOOGLE INCORPORATED, Defendant - Appellee

App. 10 Originating Case Information: District Court No: 2:10-cv-00336-LA Eastern District of Wisconsin District Judge Lynn Adelman The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date. form name: c7_FinalJudgment(form ID: 132)

App. 11

APPENDIX B UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN Case No. 10C0336 [Filed March 8, 2011] ________________________________ BEVERLY STAYART, a/k/a ) BEV STAYART, ) Plaintiff, ) ) v. ) ) GOOGLE INC., ) Defendant. ) ________________________________ ) DECISION AND ORDER This is plaintiff Beverly Stayarts third suit against an internet search engine after conducting queries using her own name as a search term and discovering that the search engines website suggested the phrase bev stayart levitra. Levitra is a medication for erectile dysfunction. Plaintiff has sued Yahoo! Inc., (Yahoo) twice and in the present action sues Google, Inc. (Google). In one of her previous actions, plaintiff claimed trademark infringement under the Lanham Act and brought supplemental Wisconsin law claims alleging that Yahoo wrongfully used her name for

App. 12 advertising purposes. The district court held that plaintiff had no commercial interest in her name and therefore lacked standing under the Lanham Act, and it declined to exercise jurisdiction over plaintiffs state law claims. The Seventh Circuit affirmed. See Stayart v. Yahoo! Inc., 623 F.3d 436 (7th Cir. 2010). In her present suit, plaintiff alleges that I have diversity jurisdiction under 28 U.S.C. 1332(a) and she asserts that Google used her name for purposes of advertising or trade in violation of Wisconsin law. See Wis. Stat. 995.50(2)(b); see also Hirsch v. S.C. Johnson & Son, 90 Wis. 2d 379 (1979). Before me now is Googles motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted. Before discussing the issues presented by Googles motion, I will briefly summarize plaintiffs allegations. Plaintiff alleges that she is a genealogy researcher, is involved in animal protection, regularly uses the internet to further these activities and is the only Bev Stayart on the internet. She also alleges that she has published several poems. Plaintiff further alleges that Google provides internet search services through a commercial website. Through proprietary software algorithms, Google reviews and indexes websites. Users address search queries to Google and it determines which websites are relevant to the query and provides the information to the user. Google also helps users find information in other ways. Google earns revenue by selling keywords to advertisers so that when a user enters a phrase connected to a keyword the advertisers website appears at the top of the search results.

App. 13 As for her complaint against Google, plaintiff alleges that in 2010 she Googled her name and Google displayed the phrase bev stayart levitra. Her search also turned up reports and commentary regarding her suit against Yahoo, a picture of a Levitra pill, a list of websites advertising medications for sexual dysfunction and a suggestion that she query the phrase bev stayart levitra. And when she queried bev stayart levitra, she was referred to websites advertising medications and suggestions that she query such phrases as bev stayart viagra and bev stayart cialis, references to other sexual dysfunction medications. Plaintiff also alleges that Google designated bev stayart levitra as a keyword phrase and earns advertising revenue from it. Plaintiff does not explain how her name came to be connected with sexual dysfunction medications on the internet nor how Google or the sellers of Levitra, Viagra and Cialis could possibly obtain a pecuniary benefit from such connection. The Communications Decency Act, 4 U.S.C. 230, effectively immunizes search engines like Yahoo and Google from claims that they displayed information created by third parties which presents an individual in an unfavorable light. Plaintiff attempts to get around this obstacle by alleging that Google is wrongfully using her name for advertising purposes. In order to survive Googles motion to dismiss, plaintiff must allege facts to describe a claim that is plausible on its face. Stayart, 623 F.3d at 438. I take all of plaintiffs allegations as true and draw all reasonable inferences in plaintiffs favor. Id. A claim has facial plausibility when the plaintiff pleads sufficient factual

App. 14 content to enable the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). In considering Googles motion, I consider both the allegations in the complaint and the exhibits referred to therein. Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002); Fed. R. Civ. P. 10(c). In order to state a claim under either 995.50(2)(b) or Wisconsin common law, plaintiff must allege sufficient facts to enable me to plausibly infer that Google used her name for advertising or trade purposes. Plaintiff fails to do so. First, plaintiff alleges no facts which suggest that her name has any commercial value or that Google derives any pecuniary benefit as a result of the connection on the internet between her name and sexual dysfunction medications. Second, plaintiff alleges no facts which suggest that Google used her name for any purpose much less that of advertising or trade. Plaintiffs allegations establish no more than that Google enables internet users to access publically available materials connected to plaintiffs name. And it is not unlawful to use a persons name primarily for the purpose of communicating information. . . Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 574 (1977) (stating that an individuals right to control use of her own name does not prevent reporting of news); see also Ladd v. Uecker, 323 Wis. 2d 798 (Ct. App. 2010) (stating that display of a persons likeness was not for purposes of trade or advertising but informative use of matter of public record); Rand v. Hearst Corp., 298 N.Y. Supp. 2d 405, 409 (App. Div. 1969) (stating that phrases such as advertising purposes and for the purposes of trade . . . must be construed narrowly and

App. 15 not used to curtail the right of free speech, or free press, or to shut off the publication of matters newsworthy or of public interest, or to prevent comment on matters in which the public has an interest or the right to be informed), affd, 257 N.E. 2d 895, 896 (N.Y. 1970). Plaintiff argues that the fact that the query bev stayart brings to the screen a picture of a Levitra pill priced at $1.67 indicates that Google uses her name for advertising purposes. However, both plaintiffs allegations and the exhibits attached to her complaint make clear that Google is merely reporting the results of its search of other websites. Likewise, the fact that a user queries plaintiffs name and the phrase bev stayart levitra pops up indicates only that other websites and users have connected plaintiffs name with Levitra. Finally, because plaintiff alleges no facts which suggest that her name has any commercial value or that any company could obtain pecuniary benefit from connecting her name to sexual dysfunction medications1 her allegation that Google sells bev stayart levitra as a keyword to companies that sell sexual dysfunction medications is unsupported by facts and implausible.

Plaintiff argues that it can be inferred that advertisers pay Google for the connection between her name and Levitra because a sponsored search result appears at the top of the search results for bev stayart levitra. However, it is obvious that advertisers pay Google to display their website whenever a user searches for levitra, even if a user also types in other words such as a persons name. The fact that a person who queries both a product and their name, e.g. bev stayart nike, does not give rise to a claim against the search engine.

App. 16 Therefore, IT IS ORDERED that Googles motion to dismiss is GRANTED, and IT IS FURTHER ORDERED that plaintiffs motion for a preliminary injunction is DENIED. Dated at Milwaukee, Wisconsin this 8th day of March 2011. /s_________________________ LYNN ADELMAN District Judge

App. 17 AO 450 (Rev. 5/85) Judgement in a Civil Case United States District Court EASTERN DISTRICT OF WISCONSIN CASE NUMBER: 10C0336 [Filed March 8, 2011] ____________________________ BEVERLY STAYART, a/k/a ) BEV STAYART,, ) Plaintiff ) ) v. ) ) GOOGLE, INC., ) Defendant ) _____________________________ ) JUDGMENT IN A CIVIL CASE 9 Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. : Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED that Defendants motion to dismiss is GRANTED and that this case is DISMISSED.

App. 18 March 8, 2011 Date Jon W. Sanfilippo Clerk /s D. Monroe (By) Deputy Clerk

App. 19

APPENDIX C UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN Case No. 10C0336 [Filed August 17, 2011] _____________________________ BEVERLY STAYART, a/k/a ) BEV STAYART, ) Plaintiff, ) ) v. ) ) GOOGLE INC., ) Defendant. ) _____________________________ ) DECISION AND ORDER Plaintiff Beverly Stayart brought this action against defendant Google Inc., alleging that defendant violated Wis. Stat. 995.50(2)(b) and Wisconsin common law by using her name for advertising purposes without her consent. I dismissed the complaint for failing to state a claim upon which relief could be granted. Before me now is plaintiffs motion for reconsideration and defendants motion for attorney fees. I first address plaintiffs motion. In her complaint, plaintiff alleges that defendants search engine scours

App. 20 the internet to create an index of publicly available websites and then allows users to search the index by entering search queries into the search engine; when it receives a query, the search engine searches the index for the identified phrase and defendants proprietary algorithm supplies a list of websites, sorted in order of their relevance to the query; that defendant misappropriated her name in that in 2010 plaintiff entered her name and defendants website displayed the phrase, bev stayart levitra; upon executing a search for her name the search results included a picture of a Levitra pill priced at $1.67 and a suggestion that she query the phrase, bev stayart levitra; and when she did, defendants website returned a list of websites selling medications for sexual dysfunction, one of which paid to have its website listed; further, upon seeking additional related search queries, the website suggested that she query such phrases as bev stayart viagra and bev stayart cialis, references to other sexual dysfunction medications; upon execution of those queries, the search results again included websites selling medications, one of which paid to have its website listed. Plaintiff also alleges that defendant designated bev stayart levitra as a keyword phrase and earns advertising revenue from selling advertisers the right to list their website when a user searches for the phrase. As I indicated in my previous decision, in order to survive defendants motion to dismiss, plaintiff must allege sufficient facts to describe a claim that is plausible on its face. Stayart v. Yahoo! inc., 623 F.3d, 436, 438 (7th Cir. 2010). A claim has facial plausibility when the plaintiff pleads sufficient factual content to

App. 21 enable the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In order to state a claim under 995.50(2)(b), plaintiff must allege facts indicating that it is plausible that defendant used her name for advertising or trade purposes. In other words, plaintiff must allege facts establishing a connection between the use of her name and the advertisement in question. Generally speaking, this connection must be substantial rather than incidental. De minimis cases of appropriation generally do not result in liability, as where the use of a picture or name is merely incidental to the profit-making motive behind a publication. See Comment, The Tort of Misappropriation of Name or Likeness Under Wisconsins New Privacy Law, 1978 Wis. Law Review 1029, 1047-48 (1978). The fact that a defendant, such as a newspaper, makes a profit from the business of publication or supports its business with advertising is not enough to make the incidental use of a name a commercial use. Restatement (Second) of Torts 652C cmt. d (1977); see also Moser v. Press Pub. Co., 109 N.Y.S. 963 (N.Y. Sup. Ct. 1908). Plaintiffs claim that defendant used her name for advertising or trade purposes is not plausible. Plaintiffs allegations suggest no more than that defendant reported the results of its search of other websites. The fact that the results of defendants search showed that plaintiffs name had become connected with Levitra on the internet does not give rise to a plausible inference that defendant used plaintiffs name for purposes of advertising or trade. It is important to emphasize that it is entirely lawful to use a persons name if it is not used for advertising

App. 22 purposes. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 574 (1977) (stating that an individuals right to control the use of her name does not prevent reporting of news); see also Ladd v. Uecker, 323 Wis.2d 798 (Ct. App. 2010) (stating that display of a persons likeness was not for purposes of trade or advertising but informative use of matter of public record); Rand v. Hearst Corp., 298 N.Y.S.2d 405, 409 (App. Div. 1969) (stating that phrases such as advertising purposes and for the purposes of trade ... must be construed narrowly and not used to curtail the right of free speech, or free press, or to shut off the publication of matters newsworthy or of public interest, or to prevent comment on matters in which the public has an interest or the right to be informed), affd, 257 N.E.2d 895, 896 (N.Y. 1970). As for plaintiffs allegation that defendants search suggestions themselves, as, for example, bev stayart levitra, constituted the use of her name for advertising purposes, the suggestions show only that third parties had connected plaintiffs name with Levitra. Reporting a connection is not an endorsement or advertisement. The search suggestions did not propose any commercial transactions. See generally Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006) (holding that internet booksellers use of a bookcover was not an endorsement or promotion of any product or service but rather incidental to and customary for the business of book sales); Leary v. Punzi, 687 N.Y.S.2d 551, 551 (N.Y. Sup. Ct. 1999) (stating that a website listing of a former employee as the contact person was not for advertising purposes because her name was not used in a manner directly related to the product or service). Likewise, the search suggestions that plaintiff

App. 23 discovered after querying bev stayart levitra, such as bev stayart cialis and bev stayart viagra, merely reflect that Cialis and Viagra are related to Levitra. Because it is not a misappropriation to use a persons name primarily for the purpose of communicating information, displaying these search suggestions does not provide a basis for plaintiffs claims. Plaintiff contends that the mere fact that advertisements appear makes it plausible that defendant sells her name as a keyword for advertising purposes. I disagree. Plaintiff does not explain how her name became connected with Levitra on the internet. Further, inasmuch as plaintiff asserts that her name has no proper connection with sexual dysfunction medications and offers no reason why sellers of such medications would pay to use her name in keyword advertising, it is not plausible to infer that defendant sells plaintiffs name as a keyword. The obvious alternative explanation is that sellers of these medications pay defendant to display their websites as sponsored search results whenever a user searches for them, even if that user also happens to query other words including a persons name. The implication of plaintiffs argument in that a person who queries their own name and the name of a product and is led to an advertisement for the product could sue defendant for misappropriating their name. It is unreasonable to believe that plaintiffs name, as opposed to the names of the medications searched for, triggers the advertisements. Because of the absence of factual enhancement, plaintiffs allegation that her name is the trigger is not entitled to the presumption of truth. Iqbal, 129 S. Ct. at 1949-50. In sum, plaintiff presents no facts making it plausible that sellers of medications

App. 24 such as Levitra would want to use her name in connection with their medication. Therefore, plaintiffs claim that defendant used her name for advertising purposes is also implausible. Therefore, I will deny plaintiffs motion to reconsider. I now turn to defendants motion for attorney fees. Under 995.50(6)(a), a prevailing defendant may recover fees if the plaintiffs claim was frivolous. An action is frivolous if (1) it is commenced in bad faith or for harassment purposes or (2) it is devoid of an arguable basis in law or equity. Wis. Stat. 995.50(6)(b). I cannot conclude that plaintiffs suit falls into either of these categories. Plaintiffs suit was novel but that does not make it devoid of any basis in law or equity. The fact that plaintiff sued Yahoo! unsuccessfully does not meant hat her suit against Google, which was based upon a slightly different set of facts, was filed in bad faith. Finally, plaintiff suggests that defendants motion is frivolous and that she is entitled to costs pursuant to 28 U.S.C. 1927, but I cannot conclude that defendants motion unreasonably and vexatiously multiplied the proceedings. Therefore, for the reasons stated, IT IS ORDERED that plaintiffs motion for reconsideration is DENIED. IT IS FURTHER ORDERED that defendants motion for attorney fees is DENIED. Dated at Milwaukee, Wisconsin, this 17th day of August, 2011.

App. 25 s/ Lynn Adelman LYNN ADELMAN District Judge

App. 26

APPENDIX D Appendix 44 and 45 to Stayart Declaration Screen shots (two) of Google search results bev stayart lyrica April 27, 2010 Filed in District Court on May 27, 2010, as Appendices 44 and 45 to Stayarts Declaration in Support of Motion for Preliminary Injunction [Fold-Out Exhibit, see next two pages]

App. 27

APPENDIX E Exhibit 26 to Complaint Screen shots of Google search results bev stayart ed April 8, 2010 Filed in District Court on April 20, 2010, as Exhibit 26 to Stayarts Complaint [Fold-Out Exhibit, see next two pages]