IN THE SUPERIOR COURT
OF THE STATE OF RIDGEWAY
NOTSFEELINGS,
Plaintiff,
v.
MATRIX_OC,
Defendant.
Case No. RSC-CV-3569
RESPONSE TO MOTION TO DISMISS
The honorable court should deny Defendant’s motion to dismiss as it is baseless and
grounded in aspects of the law which do not apply to the case before the court now.
A. A CLAIM IS CLEARLY STATED FOR MISAPPROPRIATION
The defendant is a proponent of the view that a commercial purpose is required to bring a
claim of misappropriation of name or likeness. See Def. Mot. p. 2. However, this is not the case.
Defendant misquotes the relevant elements of the tort. It is a long-established practice in this
court that where State law fails to create certain liabilities, that other liabilities are valid insofar
as they are supported by the Restatement (2nd) of Torts. See Clarke v. The Milton Daily, No.
RSC-CV-2696 (2024). The text of the Restatement which supports the misappropriation1 claim is
quoted and cited in my original complaint at 16.
Ultimately, no commercial purpose is required. “Invasion of privacy by appropriation of
name or likeness does not require the appropriation to be done commercially.” AFL Philadelphia
LLC v. Krause, 639 F. Supp. 2d 512, 27 (E.D. Pa. 2009), citing R. (2nd) of Torts § 652(c),
comment (b); see also Rose v. Triple Crown Nutrition, Inc., Civil Action No. 4: 07-CV-00056, at
*7 (M.D. Pa. 2007); see also Wagner v. Gallup, Inc., Civil No. 12-1816 (JNE/TNL), at *13 (D.
Minn. 2013). Across the country, District Courts have been providing relief in the form of
non-commercial appropriation because it is a valid claim under the Restatement. Furthermore,
“[w]hile a defendant typically appropriates the name or likeness of another for a commercial
1 “one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other
for invasion of his privacy.” R. (2nd) Torts § 652(c).
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purpose, ‘the rule stated is not limited to commercial appropriation. It applies also when the
defendant makes use of the plaintiff’s name or likeness for his own purposes and benefit . . . and
even though the benefit sought to be obtained is not a pecuniary one.’” Teltschik v. Williams &
Jensen, PLLC, 683 F. Supp. 2d 33, 34 (D.D.C. 2010), citing R. (2nd) of Torts § 652(c), comment
(b).
B. A CLAIM IS CLEARLY STATED FOR FALSE LIGHT
The basis for a claim of false light lies within the reasonable person standard. That is, the
content must be offensive to a “reasonable person.” The reasonable person standard is objective.
Vaughan v. Menlove, 3 Bing. (N.C.) 467, 132 Eng. Rep. 490 (Court of Common Pleas 1837).
Defendant relies on the argument that the speech is satire, which will be discussed below, to
bypass the reasonable person test.
The speech contained here is clearly not satire. The Court in Falwell held that caricatures
subject to protection are typically images which “exaggerate features or mannerisms for satirical
effect.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53 (1988). Merriam-Webster offers two
possible meanings of satire: (1) “a literary work holding up human vices and follies to ridicule or
scorn” and (2) “trenchant wit, irony, or sarcasm used to expose and discredit vice or folly.”
Neither of these definitions, nor the holding in Falwell apply to the case before the court now.
Instead, the case before the court now is about an image which depicts a complete falsehood,
without an attempt to ‘poke fun’ at some kind of vice or folly, or to exaggerate physical features
of the plaintiff. Without such, the speech is clearly not satire and is clearly not afforded
protection under the First Amendment nor does it gain protection under the O’Bryan holding
cited by Defendant at Def. Mot. p. 3.
Having established that the speech is not satire, it is clear that the speech is subject to
scrutiny here. Indeed, the speech is offensive under the reasonable person standard. The weight
of political endorsements weighs heavy on all those who seek to make them, and to be wrongly
accused or to appear as having endorsed a candidate with whom you have fundamental
differences in opinion will certainly offend the person who is the alleged ‘endorser.’ Take, for
example, if President Donald Trump released images of Representative Alexandria
Ocasio-Cortez which implies Ms. Ocasio-Cortez’s endorsement of him, despite their very public
disagreements. That would certainly pass the reasonable person standard as offensive, and the
same applies here and now.
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C. ALLEGED SPEECH IS NOT CONSTITUTIONALLY PROTECTED
Defendant relies on Flowers v. Carville, 112 F. Supp. 2d 1202, 1210 (D. Nev. 2000) to
provide protections from liability on the grounds of the First Amendment. Despite this,
Defendant misapplies the precedent. It is true that “‘statements of opinion on matters of public
concern that do not contain or imply a provable factual assertion’ are entitled to constitutional
protection.” Flowers, supra at 1210, citing Underwager v. Channel 9 Australia, 59 F.3d 361, 366
(9th Cir. 1995). However, “a statement made in the form of an opinion [but] containing a factual
assertion may not be afforded constitutional protection.” Flowers, supra at 1210, citing Milkovich
v. Lorain Journal Co., 497 U.S. 1, 20 (1990).
Ordinarily, opinions would be protected speech. This is not the case before the court now.
Defendant’s speech implies (meeting the Underwager standard) a factual offering that Plaintiff
has made an endorsement of him in his bid for election. If it was a mere opinion then the speech
would be protected. However, as it offers a factual matter which is provable, it is not entitled to
protection under the First Amendment.
Plaintiff agrees that the standard to proceed on these claims is “actual malice or a reckless
disregard for the truth.” Def. Mot. at p. 4. This is strongly alleged in the complaint. See Civ.
Com. at 22 and 28.
CONCLUSION
As the speech is not protected, and both claims have been sufficiently pleaded, there is no
basis for dismissal of the action. The ‘reckless disregard’ standard has been pleaded in both
causes of action because the defendant spoke with the plaintiff at the event. Accordingly, the
edited nature of the image creates a reckless disregard when the defendant knew that this was not
the shirt worn in the picture.
Dated: January 22, 2025 Respectfully submitted:
_______________________________
notsfeelings, Esq.
R. Bar No. 21101
D: @wisenheimerr
Plaintiff
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