ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
William M. Felsher, pro se Thomas O. Magan
Evansville, Indiana Scott F. Hill
Kahn, Dees, Donovan & Kahn, LLP
ATTORNEYS FOR AMICI CURIAE
HOOSIER STATE PRESS ASSN., LIN
TELEVISION CORP., NATIONAL ASSN.
OF BROADCASTERS, AND SOCIETY OF
Daniel P. Byron
Steven D. Hardin
Jennifer F. Perry
Brad R. Maurer
McHale, Cook & Welch
SUPREME COURT OF INDIANA
Dr. William M. Felsher, ) ) Appellant (Defendant Below ), ) ) No. 82S04-0008-CV-477 ) In the Supreme Court ) UNIVERSITY OF EVANSVILLE, ) No. 82A04-9910-CV-455 Dr. James S. Vinson, Dr. Stephen ) In the Court of Appeals G. Greiner, and Dr. Larry W. ) Colter, ) ) Appellees (Plaintiffs Below ). )
October 1, 2001
We live in an age when technology pushes us quickly ahead, and the law struggles to keep up. In this case, we encounter for the first time assumption of identity via the Internet. A number of existing statutes and common law precepts seem to serve surprisingly well in this dramatic new environment.
Dr. William Felsher appeals the trial courts grant of summary judgment in favor
of his former employer, the University of Evansville, and its officials. The
courts order permanently enjoined Felsher from engaging in certain Internet activity including the
creation and use of e-mail addresses and websites having an appearance of association
with the University. He raises several issues, which we restate as:
Whether the University of Evansville is entitled to bring an action for invasion of privacy, and
II. Whether the injunction placed upon Felsher was necessary and proper.
We thus address protection afforded to corporations and individuals against unauthorized and retaliatory use of private or personal names on the Internet.
The University, Vinson, Greiner and Colter filed this lawsuit alleging invasion of privacy,
and Felsher then removed the e-mail addresses and the websites. Felsher later
created another twelve websites containing roughly the same information as had appeared on
the previously removed sites.
Pending resolution of the suit, the University sought and obtained a preliminary injunction
prohibiting Felsher from engaging in certain Internet activities. The court denied Felshers
motion to remove the University as a plaintiff. The trial court ultimately
granted summary judgment in favor of the University and its officials, concluding that
they have a protectable privacy interest in their rights to the exclusive use
of their identities . . . . [and that Felsher] invaded this interest
when he appropriated the[ir] names . . . for use in e-mail correspondence
. . . . and for his benefit in creating the Internet web
sites . . . . (R. at 281-82, 291.)
The courts order permanently enjoined Felsher from (1) [a]ppropriating the names and likenesses
of the University, Vinson, Greiner, Colter, or the name of any other person
or individual associated with the University  for any purpose; (2) USING
THE E-MAIL ADDRESSES he created or any other e-mail address that incorporates the
[plaintiffs] names . . . [including] UE . . . or the name
of any other person or individual associated with the University; (3) [m]aintaining
any web site with a URL or address containing any of the plaintiffs
names, including UE, or the names of any person or individual associated with
the University . . .; and (4) [n]ominating  Vinson,  Greiner,
 Colter or any person or individual associated with the University for positions
with any other schools, colleges, or universities. (R. at 281-82.)See footnote
The Court of Appeals affirmed.
Felsher v. Univ. of Evansville, 727 N.E.2d
783 (Ind. Ct. App. 2000). We grant Felshers petition to transfer.
Representatives of several news organizations, as amici curiae, support Felshers petition to transfer
stating, [W]ell established privacy law . . . precludes corporations from bringing an
action for invasion of privacy. (Amici Curiae Br. at 3.)
See footnote Amici
accurately assert that no other state has recognized a claim for invasion of
privacy by a corporation. (
Id. at 2.)
The issue of whether a corporate entity is entitled to an invasion of
privacy claim is one of first impression in Indiana. We begin our
analysis by acknowledging the position taken in the Restatement (Second) of Torts, §
652 A(1) (1977): One who invades the right of privacy of another is
subject to liability for the resulting harm to the interests of the other.
This Court has previously observed that the term invasion of privacy is a
label used to describe four distinct injuries: (1) intrusion upon seclusion, (2)
appropriation of [name or] likeness, (3) public disclosure of private facts, and (4)
false-light publicity. Doe v. Methodist Hosp., 690 N.E.2d 681, 684 (Ind. 1997)(citing
Restatement (Second) of Torts, § 652 A (1977)). In Doe, we examined
the genesis of the privacy tort, apparently originating in an 1890 law review
article written by Samuel Warren and future U.S. Supreme Court Justice Louis Brandeis.
Id. Professor William Prosser later characterized the authors as heralding the
emergence of a new, if ill-defined, right to privacy signaled by several decisions
granting relief on the basis of defamation or invasion of some property right,
or a breach of confidence or an implied contract. Id. (quoting William
L. Prosser, Privacy, 48 Cal. L. Rev. 383, 384 (1960)).
In Doe, we also noted the Second Restatements view that the four injuries
involved in the privacy tort are only tenuously related. Doe, 690 N.E.2d
at 684. We explained that the four wrongs were separate and united
only in their common focus on some abstract notion of being left alone.
Id. (citing Restatement (Second) of Torts, § 652A cmt. b (1977)).
We indicated that recognizing one branch of the privacy tort does not entail
recognizing all four. Id. at 685. Our discussion of this history
and the Second Restatement served as a prelude to our decision not to
recognize a branch of the tort involving the public disclosure of private facts.
Id. at 682, 693.
The only injury at issue here is appropriation.
See footnote The University argues that
it may maintain an action for appropriation because the claim addresses a property
interest rather than personal feelings. (Appellees Br. at 8 (citing Restatement (Second)
of Torts, § 652C cmt. a (1977)(right created by [appropriation rule] is in
the nature of a property right . . . .).) The University
also relies on Restatement § 652I, which says, Except for the appropriation of
ones name or likeness, an action for invasion of privacy can be maintained
only by a living individual whose privacy is invaded. (Appellees Br. at
While we agree that an appropriation claim involves a privacy issue in the nature of a property right, we think the Universitys reliance on the exception set forth in the Restatement is misplaced. Each of the comments to Restatement § 652I negates the inference that a corporation is entitled to an appropriation claim.
The first comment states that the privacy right is personal. The comment then states a rule: The cause of action is not assignable, and it cannot be maintained by other persons . . . . Restatement (Second) of Torts, § 652I cmt. a (1977). The appropriation exception that follows addresses this rule, not the personal character of the right.
The second comment discusses the general requirement that the action for the invasion
of privacy cannot be maintained after the death of the individual whose privacy
is invaded. Id., cmt. b. This comment states an exception for
appropriation actions due to its similar[ity] to [an] impairment of a property right
. . . . The exception is clarified as a recognition of
survival rights in an appropriation action.
Finally, the third comment declares, without exception, A corporation, partnership or unincorporated association
has no personal right of privacy. Id., cmt. c. The comment
then states that a corporation has no cause of action for any of
the four forms of invasion covered by §§ 652B to 652E. Id.
The following sentence in the comment indicates that although these sections (including
§ 652C) do not entitle a corporation claim, a corporation has a limited
right to the exclusive use of its own name or identity in so
far as they are of use or benefit, and it receives protection from
the law of unfair competition. Id. This comment suggests the existence
of an analogous right that corporations may be afforded by the law of
See id. ([T]his may afford it the same rights and
remedies as those to which a private individual is entitled under the rule
stated in § 652C.).
Therefore, we think these Restatement sections do not support the position that a
corporation may bring an appropriation claim resting on notions of privacy.
Our assessment of the Second Restatement is consistent with an overwhelming majority of other states that have addressed the issue of corporate actions for invasion of privacy.
Among the most recent of these is Warner-Lambert Co. v. Execuquest Corp., 691
N.E.2d 545 (Mass. 1998). The Supreme Judicial Court noted that it had
not previously been presented with the issue of whether a corporation has a
corporate right to privacy entitled to the protection of [Massachusetts privacy right law].
Id. at 548. The court held that because [a] corporation is
not an individual with traits of a highly personal or intimate nature, its
privacy law did not extend protection to the corporation. Id. Justice
See footnote noted that other jurisdictions have unanimously den[ied] a right of privacy
Id. (citations omitted). See also N.O.C., Inc. v. Schaefer,
484 A.2d 729, 730-31 (N.J. Super. Ct. Law Div. 1984)(corporation is incapable of
the emotional suffering the privacy tort addresses: humiliation and intimate personal distress);
L. Cohen & Co. v. Dun & Bradstreet, Inc., 629 F. Supp. 1425,
1430 (D. Conn. 1986)(The law of privacy is  concerned with the reputational
interests of individuals rather than the less substantial reputational interests of corporations.); Ion
Equip. Corp. v. Nelson, 168 Cal. Rptr. 361, 366 (Cal. Ct. App. 1980)(A
corporation is a fictitious person and has no feelings which may be injured
in the sense of the tort.).
Although the Second Restatement suggests that unique circumstances may give rise to the
expansion of the four forms of tort liability for invasion of privacy, Restatement
(Second) of Torts, § 652A cmt. c (1977), we decline to do so
today. Instead, we explore the nature of relevant Internet activities and look
to business law for protection against the misappropriation of a corporations name.
Most North American websites on the Internet register with an organization called InterNIC
and receive a unique identifying number called an Internet Protocol (IP) address.
For convenience, most of these numeric addresses are also assigned corresponding textual addresses.
For example, Microsofts IP address is 220.127.116.11, which can also be
accessed by its textual address, microsoft.com. This textual address is referred to
as the domain name. WWW registrants frequently select domain names that identify
the registrants name or interest, for the same reasons businesses and individuals have
historically sought telephone numbers that were easy to remember. As visitors to
websites delve further and further into a website beyond its home page, each
web page is stored and accessed as a separate file located by a
unique address called a Uniform Resource Locator (URL).
The last three letters of most domain names are the highest level domain
reference and serve as the primary information Internet computers use to locate and
identify the website sought. Current highest level domains include .com for businesses,
.net for Internet services, .edu for educational institutions, .gov for government agencies, .mil
for military connections, and .org for non-profit organizations. Therefore, an Internet
user can connect to the White Houses website by typing in the address
field the following: http://www.whitehouse.gov.See footnote
In addition to supporting the Web, the Internet also facilitates personalized communication through
electronic mail (e-mail). The portion of e-mail addresses to the left of
the @ symbol is the user identification and typically identifies the account owner,
while that portion of the address to the right of the @ symbol
is the domain name of the mail server. For example, a
person can e-mail the President by addressing the message to firstname.lastname@example.org.See footnote
Nearly anyone can create a website or an e-mail address. Using readily
available software, the task requires little skill or investment. An individual can
currently acquire and register a unique domain name (web address), a customizable website
and a corresponding e-mail address for about $70 a year.See footnote Such ease
and affordability have stimulated commercial businesses, educational institutions, organizations and individuals to participate
in Internet communication.
People purchase websites, register domain names, and establish e-mail addresses to efficiently and effectively market and promote products, services and ideas to the literal world of the WWW. The ease of initiating these transactions also tempts the interests of wrongdoers, particularly in the context of domain name registrations.See footnote
As alluded to earlier, the organization in charge of maintaining the registration of North American domain names is InterNIC. Initially, registration of domain names occurred on a first-come, first-served basis. This policy was discontinued after more businesses began registering names and conflicts in requested names multiplied.See footnote The original policy permitted many enterprising individuals to attain domain names that were identical or significantly similar to trademarked names that had not yet been registered on the Internet.See footnote These individuals, sometimes referred to as cyberpredators, may be further sub-categorized according to their purpose for registering a popular name.
Cybersquatters are individuals who register domain names that are well known, not to use the addresses, but to re-sell them at a profit. For example, the domain name wallstreet.com was sold for $1 million. Cybersquatters who register previously trademarked names rarely prevail in litigation between the squatter and the holder of the trademark.See footnote
Unlike cybersquatters, copycats register a domain name and use the address to operate
a website that intentionally misleads users into believing they are doing business with
someone else. Copycats either beat the legitimate organization to a domain name
or register a close variation of an organizations domain name. The latter
most frequently occurs when a unique spelling of an organizations name and/or domain
name makes a close, but different spelling believable to a web user.
Copycat domain name use is intentionally inimical to the trademark owner. For
Planned Parenthood Federation of America, Inc. v. Bucci, No. 97 Civ.
0629 (KMW) 1997 WL 133313, at *1, *12 (S.D.N.Y. Mar. 24, 1997), affd,
152 F.3d 920 (2d Cir. 1998), cert. denied, 525 U.S. 834 (1998), the
defendant was enjoined from using the domain name plannedparenthood.com, which he had previously
registered and used to display anti-abortion material. Similarly, in Jews for Jesus
v. Brodsky, 993 F. Supp 282, 290-91, 313 (D.N.J. 1998), the defendant was
enjoined from using the registered domain name jewsforjesus.org, where he had previously created
a website for the purpose of contradicting the teachings of the actual Jews
for Jesus organization. Our previous example, whitehouse.gov, has also fallen prey to
a notorious, though unlitigated, example of copycat use.
Felshers Folios. Felshers actions seem to fall in this second category of cyberpredators. He created the imposter websites and e-mail addresses for the sole purpose of harming the reputation of the University and its officials.
Thus, it might seem appropriate to grant the University the relief gained by
the plaintiffs in Planned Parenthood and Jews for Jesus. These plaintiff organizations,
however, based their claims on provisions of the Lanham Trade-Mark Act, 15 U.S.C.
§§ 1114, 1125(a), (c) (trademark infringement, trademark dilution, unfair competition and false designation
of origin). Planned Parenthood, 1997 WL 133313, at *3; Jews for
Jesus, 993 F. Supp at 294.
These trademark actions require commercial use of the domain name. See 15 U.S.C. § 1125(c)(4)(B) (1999) (noncommercial use of a mark is not actionable under this section). Courts have held, The mere registration of a domain name, without more, is not a commercial use of a trademark. Jews for Jesus, 993 F. Supp. at 307 (citations omitted). The Lanham Act does not include claims for non-commercial use of a trademark in order to prevent courts from enjoining constitutionally protected speech. Id. (citing Panavision, 945 F. Supp. at 1303).
In any event, the plaintiffs here do not assert a right to relief under the Lanham Act, so we need not debate whether the commercial use requirement for trademark actions is satisfied by domain name registration and corresponding presentation of information on a website.
Applicable Law. Amici curiae argue that an appropriate remedy for the misappropriation
of a corporation name or likeness is found under the state unfair competition
law and trademark statutes, as well as common law torts unrelated to notions
of privacy, such as tortious interference with business relations.
See footnote (Amici Curiae Br.
at 5.) We agree.
Indiana Unfair Competition. Indiana courts have created a cause of action for
unfair competition, defined as the attempt to create confusion concerning the source of
the unfair competitors goods. Westward Coach Mfg. Co. v. Ford Motor Co.,
388 F.2d 627, 633 (7th Cir. 1968), cert. denied, 392 U.S. 927 (1968)(citations
omitted). See Rader v. Derby, 120 Ind. App. 202, 89 N.E.2d 724
(1950); Hartzler v. Goshen Churn & Ladder Co., 55 Ind. App. 455, 104
N.E. 34 (1914). This common law tort was historically considered a subspecies
of the class of torts known as tortious interference with business or contractual
relations. William L. Prosser, Prosser, Law of Torts 956 (4th ed. 1971).
In Hartzler, our appellate court described unfair competition as any conduct, the natural and probable tendency and effect of which is to deceive the public so as to pass off the goods or business of one person as and for that of another . . . . 55 Ind. App. at 464, 104 N.E. at 37 (citation omitted). The court further explained:
Unfair competition is always a question of fact. The question to be determined in every case is whether or not, as a matter of fact, the name or mark used by defendant has previously come to indicate and designate plaintiffs goods, or to state it another way, whether defendant, as a matter of fact, is by his conduct passing off his goods as plaintiffs goods, or his business as plaintiffs business.
55 Ind. App. at 465-66, 104 N.E. at 38 (citation omitted).
Professor Prossers successor has characterized such causes of action in the following manner:
Unfair competition . . . does not describe a single course of conduct or a tort with a specific number of elements; it instead describes a general category into which a number of new torts may be placed when recognized by the courts. The category is open-ended, and nameless forms of unfair competition may be recognized at any time for the protection of commercial values.
W. Page Keeton, Prosser and Keeton on the Law of Torts, 1015 (5th ed. 1984). Professor Prosser himself illustrated unfair competition this way: Though trade warfare may be waged ruthlessly to the bitter end, there are certain rules of combat which must be observed. The trader has not a free lance. Fight he may, but as a soldier, not as a guerilla. William L. Prosser, Prosser, Law of Torts 956 (4th ed. 1971).
Indiana Trademark Act. The Indiana Trademark Act, contained in Indiana Code chapter 24-2-1, adopts a similar test for the infringement of trademarks registered in the state. The act does not adversely affect the rights or the enforcement of rights in trademarks acquired in good faith at any time at common law. Ind. Code Ann. § 24-2-1-15 (West 1995). The act provides:
[A]ny person who shall:
(a) use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a trademark registered under this chapter in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source or origin of such goods or services . . . shall be liable to a civil action by the owner of such registered trademark for any or all of the remedies provided in . . . this chapter . . . .
Id. at § 24-2-1-13. The act defines a trademark as any word,
name, symbol, or device or any combination thereof adopted and used by a
person to identify goods or services made, sold, or rendered by him and
to distinguish them from goods or services made, sold, or rendered by others.
Id. at § 24-2-1-2(a). Registration of the trademark with the office
of the Secretary of State provides the registrant a remedy against the infringement
of the registered trademark. Id. at §§ 24-2-1-4, 13, 14.
It is frequently feasible to pour new wine into old legal bottles.
A number of these statutes and common law rules might well suffice as
a foundation for the relief sought by the University. They have not
been pled, however, and we find it difficult to use them here as
a basis to sustain the trial courts judgment, as we sometimes do, on
any grounds apparent in the record.See footnote
(R. at 290.)
The reasonable inference that may be drawn from these findings is that Felsher
might well continue his retaliatory endeavors via the Internet if he is not
enjoined from doing so. Felsher removed the objectionable e-mail accounts and websites
only after he received notice of the plaintiffs complaint. His
assertion that this voluntary action, along with his promise, relieves any necessity for
an injunction is unsupported. Removed e-mail accounts and websites are easily replaced.
Felshers actions are only facially remedial and provide no assurance that he
will permanently discontinue his Internet activities against the University and its officers.
The trial courts findings and the reasonable inferences that they provide confirm that
the trial court acted within its discretion when it enjoined Felsher.
Scope of Injunction. The trial court enjoined Felsher from appropriating the name,
or using or maintaining a website or e-mail address incorporating the name, of
the plaintiffs and also any other person or individual associated with the University
. . . for any purpose. (R. at 281.) The court
also enjoined Felsher from nominating the plaintiffs or any other person or individual
associated with the University . . . for positions with any other schools,
colleges or universities. (R. at 281.)
Felsher argues that the courts permanent injunction was unreasonably overbroad in its inclusion
of an infinite number of anonymous non-plaintiffs. (Appellants Br. at 17.)
Felsher asserts that the injunction should have been limited to the individuals named
in the complaint: Vinson, Greiner and Colter.
Injunctions must be narrowly tailored, and never more extensive in scope than is reasonably necessary to protect the interests of aggrieved parties. Day v. Ryan, 560 N.E.2d 77, 83 (Ind. Ct. App. 1990). The reputation of the University is directly proportional to the reputation of the individuals it employs. Having noted Felshers propensity to continue his pursuit against the University and the University officers, the trial court did not abuse its discretion by extending its injunctive order in paragraphs 1-3 to include any other person or individual associated with the University . . . . (R. at 281.)
However, the fourth paragraph of the permanent injunction requires revision. It enjoins
Felsher from [n]ominating Dr. James S. Vinson, Dr. Stephen G. Greiner, Dr. Larry
W. Colter or any other person or individual associated with the University of
Evansville for positions with any other schools, colleges or universities. (Id.)
Taken literally, the order prevents Felsher from sending nominations even under his own
name. This relief is unnecessary to protect the University officers from misappropriations
by Felsher and thus exceeded the trial courts discretion. This error can be
resolved by modifying the paragraph to clarify that Felsher is enjoined from creating
the appearance that his nominations are from anyone other than himself.
Felsher also argues that the trial court erred when it enjoined him from appropriating the names and likenesses of the University, its officials or any other person associated with the University. (Appellants Br. at 19; R. at 281.) Felshers misappropriation involved only the use of the plaintiffs names. He essentially argues that the order was too broad because the plaintiffs did not present evidence indicating that he misappropriated any likenesses. (Id.)
The phrase name or likeness is commonly used in the context of misappropriation.
See Restatement (Second) of Torts, § 652C (1977). It embraces the
concept of a persons character, which is legally protected against appropriation by another
for his own use or benefit. The terms are appropriately paired due
to their similar purpose and function: identification.
The trial courts findings indicate that Felsher intentionally invaded the privacy of the plaintiffs by creating and modifying websites and e-mail addresses containing their names. It is reasonably foreseeable that Felsher will misappropriate the likenesses of the plaintiffs by further availing himself of the Internets capacity to feature photographs, images or other representations of identity. Therefore, the trial court properly included the phrase names and likenesses when it enjoined Felsher.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.