implied agreement in making the film, Paramount was unjustly enriched at his expense.
The fact that Paramount was not a party to the alleged agreement is not dispositive;
Illinois courts recognize unjust enrichment claims in which the benefit plaintiff seeks
has been transferred to the defendant by a third party. HPI Health Services, Inc. v. Mt,
Vernon Hospital, Inc., 131 Il.2d 145, 161 (Ill. 1989). However, HPI limits the
recovery of an unjust enrichment derived from third parties to three situations:
“(1) where the benefit should have been given to the plaintiff but the third party
mistakenly gave it to the defendant instead, (2) where the defendant procured the
benefit from the third party through some type of wrongful conduct, or (3) where the
plaintiff for some other reason had a better claim to the benefit than the defendant.”
Id, at 162 (citations omitted); see also Wolff v. Ampacet Corp, 284 Ill. App.3d 824,

830-31 (IIL. App. 1996) (overruled on other grounds by Morris B, Chapman & Assocs.

y. Kitzman, 193 Ill.2d 560, 575 (Ill. 2000)).

It is clear that Muzikowski’s claim does not fall into the first two categories.
However, the third situation arguably applies. Paramount argues that the claim is
insufficient, characterizing the benefit in question as the ability to tell a story
incorporating aspects of Muzikowski’s life. Because a person does not own his or her
life story, they argue, there can be no implied contract involving the right to tell that

story. This argument is correct as far as it goes, but Muzikowski’s allegations of

-19-



argues that these statements cannot form the basis of a defamation per se claim in that
they require extrinsic facts to explain their defamatory meaning. We disagree. As the
Illinois Supreme Court noted in Owen v, Carr, statements imputing a violation of the
regulations of one’s profession can be defamatory per se. 497 N.E.2d 1145, 1149 (Ill.
1986).? As that allegation is the basis of Count III, and Paramount advances no other
deficiencies, Count III withstands the motion to dismiss. Paramount’s challenge to the
complaint’s false light claims premised on the defamatory statements alleged in
Counts II and III correspondingly survive.
C. Counts V, VI, and IX

These counts allege false advertising and endorsement in violation of the
Lanham Act, the Illinois Uniform Deceptive Trade Practices Act, and the Illinois
Consumer Fraud and Deceptive Business Practice Act. As Paramount notes, for claims
of deceptive trade practices such as these, the legal inquiry is the same under the

Lanham Act as it is under the two state statutes. See, e.g., Spex, Inc. v. Joy of Spex,

Inc,, 847 F. Supp. 567, 578 (N.D. Ill. 1994), citing Gimix, Inc, v. JS & A Group, Inc.,

? Despite this statement, the Court in Owen affirmed the trial court’s grant of the
defendant’s motion to dismiss by applying the innocent construction rule. Owen, 497
N.E.2d at 1149. However, in light of the Seventh Circuit’s earlier decision in the case
at bar, that rule cannot affect the outcome of the instant motion.

-13-



and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski
v. First Natl. Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v, Silverstein,
939 F.2d 463, 466 (7th Cir. 1991). The allegations of a complaint “should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless, in order to withstand a
motion to dismiss, a complaint must allege the “operative facts” upon which each claim

is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998). The

plaintiff need not allege all of facts involved in the claim and can plead conclusions.
Higgs v. Carter, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However,
any conclusions pled must “provide the defendant with at least minimal notice of the
claim.” Id, Further, the plaintiff cannot satisfy federal pleading requirements merely
“oy attaching bare legal conclusions to narrated facts which fail to outline the basis”
of the claim. Perkins, 939 F.2d at 466-67. With these principles in mind, we turn to
the motion at hand.
DISCUSSION
After the parties filed their initial submissions on this motion, we requested

further briefing on the application of Fed. R. Civ. Proc. 41(a)(1) and the Illinois single-


benefit to Coyle and correspondingly to Paramount go beyond just the telling of his
story. Muzikowski also alleges that he provided Coyle with access to details that only
he could provide. While this may not prove ultimately to be the case, for the purposes
of a motion to dismiss, Muzikowski states a cognizable claim under Illinois law.
CONCLUSION
Based on the foregoing analysis, Paramount’s motion to dismiss portions of the

Second Amended Complaint is granted in part and denied in part.

CR Qea Pheerer

Charles P. Kocoras
Chief Judge
United States District Court

Dated: DEC - 2 200s

-20-


As for the final contention, Muzikowski does not contest and therefore concedes
Paramount’s point that he has not alleged actual consumer reliance. Def.’s Resp. at 8.
Instead, he points out that he seeks relief other than money damages, which do not
necessarily require allegations of actual reliance to be adequately pled. Accordingly,
the portions of his complaint seeking money damages for false advertising are
dismissed. The remainder of the relief he has requested survives the instant motion.

D. Counts VII and VIII

These two counts are in essence claims for commercial disparagement. Here,
Paramount’s quarrel centers on the premise that the alleged characterizations (i.e., that
Muzikowski is a thief, a liar, a felon, and a person incapable or unworthy of trust and
responsibility) disparage Muzikowski only as an individual. It is true that commercial
disparagement cannot be used as a vehicle to compensate a victim of unwarranted
attacks that do not involve that person’s goods, services, or business. Allcare, Inc. v.
Bork, 531 N.E.2d 1033, 1037-38 (Ill. App. Ct. 1988); Am. Pet Motels, Inc, v. Chicago
Veterinary Med. Ass’n, 435 N.E.2d 1297, 1303 (Ill. App. Ct. 1982). However, the
complaint in this case alleges that honesty and trustworthiness are part and parcel of
the services that Muzikowski offers as a securities broker and insurance salesman. As

such, his pleading of these causes of action cannot be said to be fatally deficient.

-17-


defamation per se, not defamation per quod. Any amendment of the complaint to
allege a different defamation per se claims (as opposed to per quod claims) would have
been futile, regardless of whether the statutory limitation period had expired. It follows
that the statement of the appellate court does not apply to these new claims.

Along the same vein, Paramount contends that Counts II and III are time-barred.
Muzikowski responds that because his original complaint included a claim of
defamation against Paramount based on the same facts that underlie the new allegations
of defamation per se, the relation back doctrine allows him to take advantage of his
original filing date. If Muzikowski is correct, his new claims would not be time-barred.

Under Federal Rule of Civil Procedure 15(c)(2), an amended complaint is not
barred by the statute of limitations when it relates back to the date of the original

pleading. Bularz v. Prudential Ins. Co. of Am., 93 F.3d 372, 379 (7th Cir. 1996). In

order to relate back to the date of the original pleading, the new claim brought in the
amended complaint must “[arise] out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading,” even if the new claim
involves a different substantive legal theory. Id. Here, Counts I and III stem from the
same conduct, transaction, or occurrence that was at issue in the original complaint.

Accordingly, the relation back doctrine applies to the newly alleged defamation claims,


voluntary dismissal,” thus providing the finality necessary for an appeal to proceed.
Muzikowski, 322 F.3d at 923-24. Muzikowski places great emphasis on the phrase
“akin to” and contends that he never asked for any voluntary dismissal, so he cannot
be held responsible for the fallout of the procedural vehicle chosen by the appellate
court to allow his case to be heard and decided there. This argument singularly misses
the point. Muzikowski voluntarily pursued his appeal of a decision that was not a final
judgment. The only way for him to receive the relief he sought was to voluntarily
dismiss the claims that he could have continued to pursue in the district court with an
amended complaint. The appellate court overlooked the procedural improprieties in
Muzikowski’s presentation, and he accordingly received the benefit of an expedited

appeal. It is difficult to grasp how he can now argue that he should be exempt from the

' The appellate court also concluded that finality was present because the one-
year statute of limitations had expired by the time the appeal was argued, thus
precluding any refiling of a new complaint. It is unclear why the court used this as a
jurisdictional basis. In each of the cases cited by the court in support of its reasoning,
the statute of limitations expired during the pendency of proceedings in the district
court. See Larkin y. Galloway, 266 F.3d 718, 721 (7th Cir. 2001); Elmore v.
Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000). In this case, by contrast, less than
three months of the one year had elapsed at the time of the dismissal; Muzikowski had
almost thrice that amount of time left in which to refile in a timely manner. In addition,
as is clear from the new claims in the amended complaint, Muzikowski could have
included claims that were not couched in terms of defamation, obviating any
application of the innocent construction rule.

-6-


filing rule, 735 ILCS § 5/13-217. The parties have briefed the additional question, and
we have carefully considered their arguments.

In essence, Muzikowski contends that neither of these rules apply to his case.
In his view, the case has been voluntarily dismissed only once, when he dismissed the
action filed in the Central District of California. In his view, the only other dismissal
that occurred was our order granting Paramount’s motion to dismiss. While it is true

y

that our order was an involuntary dismissal, Muzikowski ignores a crucial chapter in
the procedural history of this case. As stated earlier, our dismissal was expressly
without prejudice. While the decision with regard to the per se claims did not hinge
on a defect that could be cured with an amended pleading, the defamation per quod
claims certainly did. Thus, at the time that Muzikowski elected to stand on his
complaint and pursue appeal, the judgment was not final with respect to all claims,
precluding appellate jurisdiction under 28 U.S.C. § 1291. Perhaps because
Muzikowski was no longer represented by counsel, the appellate court did not decline
to hear the case on the grounds that it had no jurisdiction until all claims were
dismissed with prejudice. See West v. Macht, 197 F.3d 1185, 1189-90 (7th Cir. 1999).
Rather than holding Muzikowski to strict compliance with this requirement, the

appellate court interpreted his actions in pursuing an immediate appeal as “akin to a


E. Count X

Count X purports to state a claim for intentional infliction of emotional distress.
Paramount’s sole argument in support of its dismissal for this count is that it cannot
stand because of the First Amendment implications of this case. As stated earlier, this
may very well be the case, but this defense does not address the issue of whether this
count states a legally cognizable claim. The First Amendment, while powerful, does
not provide an absolute bar to prohibitions of speech such that any request for
injunctive relief in a case involving speech must be thrown out at the pleading stage.*
Because Paramount does not argue any other inadequacies, the motion to dismiss this
count is denied.
F. Count XI

Count X1 is a claim premised on unjust enrichment. Muzikowski alleges that
he and Coyle had an implied contract that Muzikowski would cooperate with the
author’s efforts, including giving him special access to the details of Muzikowski’s life
and the inner workings of the NNLL. In return, Coyle would use the information only
in a nonfiction book that accurately reflected (in Muzikowski’s opinion), the stories he

related to Coyle. Muzikowski argues that by not complying with the terms of this

4 Paramount’s motion to strike all requests for injunctive relief follows a similar
line of argument. Simply put, it is too early in this litigation to weigh all of the
considerations that would be involved in resolving the propriety of injunctive relief.

-18-


call as to whether the purpose of the exception would or would not be served; as
Paramount points out, Muzikowski’s actions in this case border on prejudice to the
defendants. However, as Muzikowski points out, Paramount has not expressly raised.
this issue at any point in the litigation, even on appeal. If we were starting from a clean
slate, we are not convinced that Muzikowski’s argument would carry the day, but given
that Muzikowski has been allowed to amend the complaint twice since the case was
remanded, it would not be appropriate to create new law at this point that would have
drastic consequences for a case already in progress. We therefore conclude that the
new complaint is not barred by either the Illinois single-filing rule or Fed. R. Civ.
Proc. 41.

Paramount also argues that the new defamation claims are barred by the law of
the case doctrine. They base this contention on the combination of two things: first,
the new claims were not included in the initial complaint; and second, the Seventh
Circuit expressly stated that “any new [defamation] claim would be barred by the
statute of limitations.” Muzikowski, 322 F.3d at 923. While this accurately quotes the
appellate court, it clearly applies only to defamation per quod claims; any defamation
per se claims would have been barred by our decision regarding the application of the
innocent construction rule. Thus, we cannot agree that the law of the case bars the

specific claims embodied in Counts II and III. Both of these claims are claims for

-8-


‘Mimste Orden¥orm (0697)
rf

United States District Court, Northern District of Minois

‘Name of Assigned Jud, Sitting Judge if Oth
a Meslenate Judge Charles P. Kocoras tha vere Judge
CASE NUMBER 01 C 6721 DATE 12/2/2003
CASE Muzikowski vs. Paramount Pictures Corp. et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) a Answer brief to motion due . Reply to answer brief due.
(4) Q Ruling/Hearing on set for at :
(5) a Status hearing set for 12/16/2003 at 9:30 A.M..
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on setfor_ ss at__
(7) Oo Trial[set for/re-set for]on__at
(8) Qa [Bench/Jury trial] [Hearing] held/continuedto__at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OlLocal Rule 41.1 OFRCP41(a\(1) OO FRCP41(a)(2).
do of [Other docket entry] ENTER MEMORANDUM OPINION: Paramount’s motion (Doc 33- j)
to dismiss portions of the Second Amended Complaint is granted in part and denied in part.
2
(11) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

DEC 03 2003

Notified counsel by telephone. date docketed.

oa | Docketing to mail notices,
Mail AO 450 form.

gruisia sn
44nod i aut

Copy to judge/magistrate judge.

courtroom
ScT deputy’s
initials 3-934
Wodeibereested in

BE Wd 2 930 tv

central Clerk's Office



simultaneous occupations of surgeon and banker). Moreover, nothing in the case law
indicates that payment for one’s services is necessary for an activity to be considered
a party’s business or profession for the purpose of stating a legally cognizable
defamation per se claim.

The parties’ arguments on this point, while interesting, do little to illuminate the
issue. Muzikowski’s assertion that the Illinois courts have adopted the portions of
§ 573(b) of the Restatement (Second) of Torts, which states that holders of honorary
or private offices in organizations such as fraternities and clubs can bring defamation
per se claims for statements pertaining to their offices, is shaky at best. The two cases
to which he refers do not support such a broad statement. In the first case, the Seventh
Circuit addressed only §§ 559 and 566 of the Restatement (Second). Pope v. Chronicle
Publishing Co., 95 F.3d 607 (7th Cir. 1996). The second case cites § 573(b) for the
proposition that defamation in Llinois includes statements regarding the integrity of
one who holds a public office, not an honorary or private one. Cooper y. Rockford
Newspapers, Inc., 365 N.E.2d 744 (Ill. App. Ct. 1977). While these two cases may
indicate that Illinois courts may eventually adopt § 573(b) in its entirety, the affirmative
representation that they already have overstates the case.

With regard to Paramount’s position, King v. Armstrong does not stand for the

proposition that volunteer work cannot be a person’s profession. 623 F. Supp. 487,

-1i-


and they are not time-barred. We now turn to the substantive challenges to the new

claims.

A. Count II

Count II of the Second Amended Complaint alleges that the film is defamatory
per se toward Muzikowski in that it prejudices him in his profession as a Little League
coach and fundraiser for the NWLL and the Chicago Hope Academy. A statement is
defamatory per se if it wrongfully prejudices a party in her trade, profession, or
business or falsely indicates that the party has committed a criminal offense, is infected
with a venereal disease, is unable to perform or Jacks integrity in the discharge of
duties of public office, or has committed fornication or adultery. Bryson v. News Am,
Publications, 672 N.E.2d 1207, 1214-15 (Hil. 1996).

Paramount’s sole challenge to this count is that because Muzikowski is a
volunteer in the NWLL and the Chicago Hope Academy, his work with them cannot
be considered his profession. Rather, they insist, his only profession is that of
securities and insurance broker. While this argument presents some initial appeal, it
is insufficient to warrant dismissal of this count. Paramount has presented no authority
that would indicate that, for the purposes of a defamation per se claim, a person can
have only one business, trade, or profession. Cf, Campbell v. Morris, 224 Ill. App. 569

(il. App. Ct. 1922) (allowing defamation plaintiff to allege injury to plaintiffs

-10-


consequences of the Seventh Circuit’s magnanimous treatment ofhis unfamiliarity with
rules of procedure.

Paramount acknowledges that the particular situation presented in this case has
never been directly addressed in case law discussing Rule 41(a)(1) or the Illinois
single-filing rule. Our research has likewise revealed no authority directly on point.
Paramount advances compelling arguments rooted in the policies behind the two rules.
In short, the reasoning goes like this: After our dismissal order, Muzikowski was faced
with a choice to amend his complaint with claims that did not suffer from the

deficiencies enumerated in the order or to pursue immediate appeal of the decision on
his defamation per se and false light claims. He freely chose the latter, and the price
of that choice is permanent forfeiture of the former. This argument as well as
fundamental fairness strongly support a conclusion that Muzikowski should be limited
to pursuing the claims that were considered and upheld by the appellate court.
However, as noted earlier, the case law is not clear on whether the claims advanced in
the amended complaint should be considered a third filing, and we are mindful of the
Seventh Circuit’s admonition that the scope of the narrow exception embodied in the
“two-dismissal” rule should not be expanded when the underlying purpose of the

exception would not be served. Sutton Place Development Co, v. Abacus Mortgage

Inv. Co., 826 F.2d 637, 640 (7th Cir. 1987). The facts of this case present a very close

7.


defamation and false light invasion of privacy. The motion for a preliminary injunction
was denied and the film hit theaters on September 14, 2001.

On November 28, 2001, this Court dismissed Muzikowski’s defamation per se
claims on the basis that the film could be innocently construed. Muzikowski v.
Paramount Pictures Corp., 2001 WL 1519419 (N.D. Ill. 2001). The false light claims
were dismissed on similar grounds. Id. The per quod claims were dismissed for failure
to plead special damages with sufficient specificity. Id. The dismissal was expressly
without prejudice, and Muzikowski appealed, and the Seventh Circuit reversed our
decision on the per se and false light claims, holding that, because of the different
standards of pleading in the Illinois state and federal courts, the innocent construction
tule cannot be applied on a motion to dismiss. Muzikowski v. Paramount Pictures
Corp., 322 F.3d 918 (7th Cir. 2003). Muzikowski has since amended his complaint to
include nine new claims. Paramount now launches a 12(b)(6) challenge to Counts II,
TI, and V through XI.

LEGAL STANDARD

Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a
complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling
on a motion to dismiss, a court must draw all reasonable inferences in favor of the

plaintiff, construe allegations of a complaint in the light most favorable to the plaintiff,

3.


699 F.2d 901, 908 (7th Cir. 1983). Accordingly, the following analysis applies to all
three counts.

1. False Endorsement

The gist of Muzikowski’s false endorsement claims is that the use ofa character
similar to him in the movie gives the false impression that he sponsored or endorsed
the film. In support of his argument, he looks to case law that stands for the
proposition that endorsements can be implied through use of identifiers other than
name or likeness. See, e.g., White v. Samsung Electronics America, 971 F.2d 1395,
1400 (9th Cir. 1992). The cases give this quality the necessarily amorphous moniker
“persona.” Although neither the parties’ briefs nor our own research has revealed any
Illinois cases involving this issue, the recently passed Illinois Right of Publicity Act
defines a person’s “identity” broadly, as “any attribute of an individual that serves to
identify that individual to an ordinary, reasonable viewer or listener” and includes a
nonexhaustive list of examples. 765 ILCS § 1075/5. While the term “persona” is not
contained in the list of examples, the breadth of this new statute supports the
conclusion that Illinois courts would use an expansive approach in determining what

kinds of attributes are protected under the statute.> In essence, Muzikowski alleges that

3 However, several cases support the conclusion that the amalgamation of events
transpiring during a person’s life is not a protectible interest (even when a person’s
(continued...)

-14-


2. False Advertising

Paramount avers that Muzikowski cannot bring a false advertisement claim
because he has not alleged that he is a competitor of Paramount, because he has not
alleged a misrepresentation within the advertisements or promotional material, and
because he has not alleged actual consumer reliance, a necessary predicate of a claim
for damages. L.S. Heath & Son v. At&T Info. Sys., Inc., 9 F.3d 561, 575 (7th Cir.
1993).

On the first and second points, we cannot agree with Paramount’s contention
that the Second Amended Complaint does not contain sufficient allegations that the
two parties are competitors. Rather, it is apparent from the face of the complaint that
Muzikowski claims that he and Paramount are competitors in marketing the goodwill
he has accumulated with his philanthropic efforts. Furthermore, read with all
reasonable inferences in favor of the plaintiff, the complaint alleges that the
representation of the film as “based on” a true story, though not outright false, was
misleading. See Hot Wax, Inc. v, Turtle Wax, Inc,, 191 F.3d 813, 820 (7th Cir. 1999)
(stating that claims that are literally true but that implicitly convey a false impression
can form the basis of a false advertising claim). Whether Muzikowski will ultimately
be able to prove these two propositions is another question, but not one that need be

resolved for the purposes of this motion.

-16-



Chicago and New York. Muzikowski has founded several leagues, among them the
Near North Little League (“NNLL”) and Near West Little League (“NWLL”). He has
also been involved with a not-for-profit charitable organization called the Chicago
Hope Academy. Because of his efforts, Muzikowski has been recognized by
Little League, Inc., the governing body of all Little League programs, and he has been
featured in several publications and broadcasts around the United States.

In 1994, an assistant coach in the NNLL named Daniel Coyle authored a
nonfiction account of his coaching experience entitled Hardball: A Season in the
Projects. The book mentions Muzikowski several times and discusses his life,
background, and his work with the NNLL teams. Paramount purchased the film rights
to the book, and in September 2001 released the film Hardball. The film recounts the
story of Conor O’Neill (“O’Neill”), a hard-drinking gambling addict who coaches an
inner-city baseball team of young boys to pay off a debt owed to a bookie. O’Neill is
portrayed as violent and self-centered, as well as engaging in illegal activities such as
ticket scalping.

Based on preliminary reviews of the film, Muzikowski filed suit first in the
Central District of California. He voluntarily dismissed that action and refiled it in this

Court. He sought an injunction of the film's release and $11,000,000 in damages for


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS Do
EASTERN DIVISION CKETED
DEC 03 2993
ROBERT E. MUZIKOWSKI, an individual, )
)
Plaintiff, )
)
vs. ) 016721
)
PARAMOUNT PICTURES CORPORATION; __)
SFX TOLLIN/ROBBINS, INC.; and )
FIREWORKS PICTURES, )
)
Defendants. )
MEMORANDUM OPINION

CHARLES P. KOCORAS, Chief District Judge:

This matter comes before the court on the motion of Defendants Paramount
Pictures Corporation, SFX Tollin/Robbins, Inc. and Fireworks Pictures (collectively
referred to herein as “Paramount”) to dismiss Counts II, III, and V through XI of the
Second Amended Complaint filed by Plaintiff Robert Muzikowski (“Muzikowski”)
pursuant to Fed. R. Civ. Proc. 12(b)(6). For the reasons set forth below, the motion is
granted in part and denied in part.

BACKGROUND
Muzikowski is a securities broker and insurance agent. For the last ten years,

he has been active in organizing and running baseball leagues for young boys in

K\



492 (ND. Ill. 1985). Rather, the court in King specifically based its decision on the
conclusion that the plaintiff’s activities were not her profession or employment. The
contents of the instant complaint, by contrast, could support the inference that
Muzikowski’s volunteer efforts comprise a second profession. The other case cited by
Paramount does not address the question of whether unpaid activities can ever
constitute a person’s profession; that case concluded that only public officeholders
could bring suit under the category of defamation per se discussed in Cooper. Spelson
y. CBS, Inc., 582 F. Supp 1195 (N.D. Ill. 1984).

Accordingly, we cannot say as a matter of law that Muzikowski’s volunteer
activities cannot be his profession for the purposes of a defamation per se claim, and
Paramount’s motion to dismiss Count II must be denied.

B. Count IIT

Count III also involves a defamation per se claim, but this time it is premised on
Muzikowski’s occupation in the securities field. The gist of this claim is that the film
depicts O’Neill engaging in activities that would prompt reporting responsibilities and
possible disciplinary action by regulatory agencies. In other words, if the entities
responsible for policing the securities industries believed that the real-life Muzikowski
engaged in the same activities as the character O’Neill, he could face discipline either

for not reporting these activities, for engaging in them at all, or both. Paramount

-12-


the character O'Neill reflects his persona, thereby falsely implying that the real-life
Muzikowski has endorsed the story Paramount’s film tells.
In Tesponse, Paramount raises the fact that, because this case involves speech

il iain
(and artistic enitlasion at that), it ‘a 4 significant First Amendment component.

| ale
While that is consinly the case, the Pt tections of the Amendment are not so absolute

ill

that they automatically bar seston from bringing his claims under the Lanham
i

il [|
Act and similar state statutes. To properly assess Paramount’s contention, we would

be required to balance public interest in the free flow of ideas and creativity against
Muzikowski’s ability to control marketing of his claimed celebrity value. The time for
such an inquiry has not yet come in this case. For purposes of the present motion, we
look only to the legal sufficiency of Muzikowski’s allegations in isolation. So viewed,

they are sufficient to withstand the motion to dismiss.

3 (...continued)
actual name and likeness are used and particularly when fictionalized elements are
included) and therefore does not amount to a “persona.” See, e.g., Matthews v.
Wozencraft, 15 F.3d 432, 437 (Sth Cir. 1994); Ruffin-Steinback v. dePasse,
F. Supp. 2d 723, 731 (E.D. Mich. 2000); Seale v. Gramercy Pictures, 949 F. Supp. 331,
337 (E.D. Pa. 1996); Hicks v. Casablanca Records, 464 F. Supp. 426, 433 (S.D.N.Y.

1978). See also White v. Samsung Electronics America, Inc., 989 F.2d 1512 (9th Cir.
1993) (dissent from denial of petition for rehearing) (expressing grave First

Amendment implications of overprotection of celebrities’ right of publicity and related
rights).

-15-