Terry Bollea, better known as the professional wrestler with the stage name Hulk Hogan (“Hogan”), is involved in an unattractive legal battle that presents an unusual intersection of the First Amendment, copyright law, and privacy/publicity issues.
Hogan filed two lawsuits arising out of a 2006 sexual encounter with Heather Clem (“Heather”), then the wife of his best friend Todd Clem (“Clem”), the popular radio personality “Bubba the Love Sponge” (pictured to the right). The 30 minute encounter was taped and pictures and portions of the tape have been leaked on the internet.
In early October, celebrity gossip site Gawker posted a 141 second excerpt of the encounter (available here), fewer than ten seconds of which was the sexual activity. Hogan’s first complaint was filed against Clem and Heather for making the tape, and the second was against the web-site Gawker for showing excerpts from the tape. The claims in both lawsuits are largely the same: invasion of privacy by intrusion, invasion of privacy by publication, intentional infliction of emotional distress and negligent infliction of emotional distress. The lawsuit against Gawker was amended last week to include a copyright infringement claim (a copy of the amended complaint is here). Hogan now claims to own the copyright to the tape and claims to have filed for a copyright registration. Hogan sought $100 million in each lawsuit.
Clem publicly responded to the complaint against him by stating that Hogan was aware of the taping as well as its public release (various comments can be seen here, here, here, and here). Now, however, Hogan has settled his claim against Clem and Heather, and Clem now states that Hogan was unaware of the taping and its publication (as discussed here).
Hogan applied for a temporary restraining order and a preliminary injunction (application here) to prevent Gawker from showing the tape. Gawker’s opposition (available here), filed on Friday November 2, argued that the First Amendment precludes Hogan’s claims for privacy rights violations and infliction of emotional distress. Hogan’s amended complaint was filed on Thursday November 8, and, as stated above, for the first time asserts a copyright infringement claim and the allegation that Hogan applied for a copyright infringement claim. Oral argument was held last week, and MSNBC reports that at oral argument Hogan’s counsel relied heavily on Hogan’s copyright claim.
Of course, Hogan seeking copyright protection by, inter alia, filing copies of the tape with the Library of Congress (theoretically making the tape available to everyone), seems to belie Hogan’s claim that the excerpts published by Gawker violate his right to keep the tape private. Likewise, there appears to be a tension between Hogan’s claim that he was unaware of (and did not consent to) the taping while at the same time claiming that he is the author for purposes of copyrightability. Obviously, with respect to all of these claims the issues concerning the taping, Hogan’s awareness of it, and its publication are all fact intensive.
A ruling on Hogan’s request for an injunction should come soon. It is unclear whether the copyright issues will be included in the decision, as those issues were not subject to briefing. However, as this case unfolds, there should be interesting developments on the intersection between the privacy concerns (i.e. the unauthorized taping), the interplay with copyright ownership of the recording, and how both intersect with Gawker’s First Amendment rights. Stay tuned.