A sports writer for The Oklahoman has good reason to be aggrieved with a Nebraska football fan who put his name on a hoax Internet story. But Oklahoma's publicity rights law may not support his claim for misappropriation of a byline.

Jake Trotter covers University of Oklahoma football but had nothing to do with the story posted under his byline July 9 on the website DarthHusker.com and an Internet message board. The article, which also used a template from The Oklahoman website, falsely reported that two Sooner quarterbacks had been arrested on drug charges.

DarthHusker.com's operator, James Conradt, has said he created the story in response to smack talk by OU fans on a Nebraska message board. “I just wanted to get 'em all riled up, I guess,” he told The Oklahoman.

But at least two Texas radio stations reported the story as fact and, despite Conradt's speedy apology and retraction, the publisher of The Oklahoman and Trotter sued him July 14, alleging, among other things, trademark dilution, copyright infringement, violation of publicity rights, false light invasion of privacy and defamation.

“Defendant's actions have caused harm to the journalistic reputation of [The Oklahoma Publishing Co.] and Trotter,” the complaint, which seeks punitive damages, says.

The misappropriation of a reporter's identity probably takes Conradt outside First Amendment protections for satire or parody. And no matter what his intent was, there is no such thing as “innocent” copyright infringement.

Under Oklahoma's publicity rights law, Trotter can recover damages for unauthorized use of his name if Conradt knowingly used it “on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services” without his consent.

The hoax story clearly satisfies the elements of knowing use and lack of consent. But the problem here for Trotter is that the language of the statute envisages liability only in a commercial context and there is no evidence that the story is a “product” in the commercial sense of the word.

The claims for false light and defamation, meanwhile, raise the novel issue of whether the reputation of a reporter can be damaged by a bogus byline. Much as reporters prize their bylines, it is unlikely that a reasonable reader would find anything malicious in the misuse of Trotter's name –- and the “actual malice” test should apply since he is at least a limited-purpose public figure.

The final paragraph of the story also should have alerted any reasonably perceptive reader that it was a hoax. “Normally,” Conradt wrote,

success on the field has been followed by arrests off it for the Sooners. Booster groups expressed hope that these incidents [with the quarterbacks] were an indication that the team was going to have an excellent year.

By Matthew Heller
7/28/08