March 30, 2012 6:04 PM

Split Decision in Widow's Suit Against WWE Over Use of Wrestler Owen Hart's Likeness

Posted by Victor Li

As World Wrestling Entertainment prepared for this weekend's Wrestlemania XXVIII—which features a heavily hyped match between John Cena and wrestler-turned-actor Dwayne "The Rock" Johnson—the company claimed a partial win in the latest round of its ongoing legal skirmish with onetime WWE star Owen Hart's widow.

On Wednesday, Connecticut federal district court judge Stefan Underhill dismissed most of Martha Hart's claims against the company, and dismissed all of her claims against WWE chairman and chief executive officer Vince McMahon and his wife, former WWE CEO and current Republican U.S. Senate candidate Linda McMahon.

The WWE and the McMahons are represented in the case by their longtime outside counsel, K&L Gates partner Jerry McDevitt, with an assist from Day Pitney. Martha Hart, meanwhile, is represented by Nixon Peabody partner Gregg Rubenstein.

Martha Hart and the WWE have been grappling in court for years. In November 2000, she settled a wrongful death suit against the Stamford, Connecticut–based WWE for a reported $18 million. She filed the suit after her husband was killed during a 1999 WWE pay-per-view event when he fell nearly 80 feet from a zip cord apparatus as he was being lowered from the rafters of Kansas City's Kemper Arena.

In this latest case, Martha Hart sued the McMahons and the WWE in June 2010, alleging that the company's April 2010 DVD anthology chronicling the history of the famed Hart wrestling family featured her late husband's likeness and name without her permission. Owen Hart was prominently featured on the DVD set along with his father, wrestling promoter Stu Hart, his brother, former WWE champion Bret "The Hitman" Hart, and his brothers-in-law, Jim "The Anvil" Neidhart and the late Davey Boy Smith. (In McDevitt's first case representing what was then known as the World Wrestling Federation, the K&L Gates litigator got Neidhart acquitted in 1987 on charges of attacking a flight attendant in a drunken brawl.)

In an August 2010 amended complaint, Martha Hart claimed that her husband's contract with the WWF terminated upon his death and that the rights to certain intellectual property, including his name and likeness, had reverted to his estate. Martha Hart also claimed that she had not received any royalties from the WWE and that the company's duty to pay these royalties continued even after the termination of the contract.

The complaint also accuses Vince and Linda McMahon of violating Owen Hart's right of publicity by continuing to exploit his image despite knowing that Martha Hart and the Owen Hart Foundation, which she established in 2000, wanted nothing to do with professional wrestling.

"[The WWE and the McMahons] have engaged in a host of blatantly disrespectful acts in regards to Owen since his death and have never once apologized to Martha or Owen's and her children for their role in causing Owen’s death," Rubenstein stated in the complaint. "For this reason and others, Martha has refused all association of her late husband's image, likeness and name with the WWE, Vince McMahon or Linda McMahon since Owen's death."

Underhill, however, disagreed with most of Martha Hart's claims. In his 23-page decision, Underhill held that Owen Hart's contract (called a "booking agreement") clearly stated that any intellectual property used by Owen Hart during his WWE career was owned by the WWE in perpetuity and that the WWE retained exclusive rights to that intellectual property. Underhill ruled that while Owen Hart's legal name could be excluded from the intellectual property belonging to the WWE, his ring name belonged to the WWE under the booking agreement's terms.

Underhill also dismissed Martha Hart's claims related to Owen Hart's publicity rights, saying the booking agreement's terms gave the WWE the right to utilize videos of his matches and photos of his time working for the company.

Underhill's ruling didn't throw Martha Hart for a total loss. The judge allowed her claim for unpaid royalties against the WWE to move forward. Additionally, Underhill found that certain personal photos  used in the DVD anthology may have violated Owen Hart's privacy rights. "It is true that Owen consented to the use of his wrestling persona, but nothing suggests that Owen consented to the use of personal family photos," Underhill wrote.

As for the McMahons, Underhill dismissed all of Martha Hart's claims against them. He wrote that she had failed to allege facts showing that either of the McMahons participated in the making of the DVD anthology.

Underhill also granted McDevitt's motion to strike certain allegations in the complaint he believed to be inflammatory toward the McMahons, including accusations that they had forced Owen Hart to go through with the stunt that killed him, had acted disrespectfully toward the late wrestler since his death, and had tried to intimidate Martha Hart during the wrongful death suit.

McDevitt stated in his September 2010 motion that those allegations were designed to hurt Linda McMahon's 2010 U.S. Senate campaign in Connecticut. McMahon, a Republican, lost that race to then-state attorney general Richard Blumenthal in a landslide, despite spending $40 million. McMahon is running for Senate once again and is currently leading the GOP race.

WWE attorney McDevitt tells The Am Law Daily he is pleased the court adopted his position with regard to the intellectual property issues.

"We were correct on our interpretation of the booking agreement," says McDevitt, who was in Miami Friday, getting ready to attend Wrestlemania. What happens now, McDevitt says, is up to Martha Hart. "I don't know whether she wants to resolve it. We've always been willing to talk. If she wants to talk to us, she can."

Martha Hart's attorney, Rubenstein, says his client intends to continue pursuing the case and is still considering the judge's decision.

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