Estate of Bisignano v. Exile Brewing Co.

694 F.Supp.3d 1088

ESTATE OF Ruth C. BISIGNANO, BY AND THROUGH its administrator, Fred HUNTSMAN; and Estate of Frank Bisignano, as successor in interest to Ruth C. Bisignano, by and through its administrator, Fred Huntsman, Plaintiffs, v. EXILE BREWING COMPANY, LLC, Defendant.

4:22-cv-00121-SHL-SBJ

United States District Court, S.D. Iowa, Central Division

Signed September 26, 2023

Scott Michael Wadding, DeLaney Kozlowski, Matthew Sease, Sease & Wadding, Des Moines, IA, for Plaintiffs.

Kristina Janice Kamler, Engles Ketcham Olson & Keith PC, Omaha, NE, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART CROSS MOTIONS FOR SUMMARY JUDGMENT

STEPHEN H. LOCHER, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION.

Nearly twenty years after Ruthie Bisignano died, Defendant Exile Brewing Company, LLC ("Exile") began using her name and likeness for marketing purposes. Exile argues that, by that time, any statutory or common law rights Ruthie or her heirs might have possessed in her name and likeness had long since expired or been abandoned. The Court agrees in part and disagrees in part. It concludes that Ruthie's Estate does not have a viable claim under the federal Lanham Act but is entitled to a jury trial on common law right-of-publicity and similar claims under Iowa law.

II. FACTUAL AND PROCEDURAL BACKGROUND.

A. Preliminary Issue: Admissibility of Newspaper Articles Regarding Ruthie.

Much of the parties' understanding of Ruthie's life is based on newspaper articles from the 1950s. (See, e.g., ECF 119-1, ¶ 15; ECF 104-3, ¶ 46.) The Estates submitted forty-seven articles in support of their motion for partial summary judgment on the Lanham Act claim. (ECF 104-3, ¶ 2 (citing ECF 90-3, pp. 113-62).) Exile characterizes these newspaper clippings as "rank hearsay" (id., p. 3) and persistently objects to the Estates' reliance on them in their statements of fact (e.g., id., ¶¶ 1-2; ECF 124, ¶¶ 1-6). As the substance of the articles is relevant in many ways to the pending motions, the Court will address Exile's objection before discussing the facts.

Generally speaking, newspaper articles are hearsay and cannot be considered by the Court in determining whether there are genuine disputes of material fact. See Crews v. Monarch Fire Prot. Dist., 771 F.3d 1085, 1092 (8th Cir. 2014) (citing Fed. R. Civ. P. 56(a)). There are exceptions to this rule. The first—not really an exception at all—applies when the articles are not being offered for the truth of the statements contained therein. Fed. R. Evid. 801(c)(2); see Schickel v. Dilger, 925 F.3d 858, 872 n.1 (6th Cir. 2019). (admissible for evidence of current events and their effect on a third party); Lyons P'ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 804 (4th Cir. 2001) (admissible for evidence of children's and reporters' reactions). The second exception applies when a party, through its conduct, manifests its adoption or belief of the article's truth. Fed. R. Evid. 801(d)(2)(B); see Wagstaff v. Protective Apparel Corp. of Am., 760 F.2d 1074, 1078 (10th Cir. 1985) (articles were admissible where defendants "reprint[ed] the newspaper articles and distribut[ed] them to persons with whom defendants were doing business" thereby "unequivocally manifest[ing] their adoption of the inflated statements made in the newspaper articles"). The third exception applies when the newspaper article "is supported by sufficient guarantees of trustworthiness" and is "more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts," which places it within the residual exception to the hearsay rule. Fed. R. Evid. 807; see In re Columbia Sec. Litig., 155 F.R.D. 466, 478-79 (S.D.N.Y. 1994) (admitting news article under residual exception); see also Ciarlone v. City of Reading, 489 F. App'x 567, 570 (3d Cir. 2012) (considering but ultimately rejecting residual exception where articles were published two-and-a-half years after incident).

One or more of these exceptions is generally applicable here. First, many of the articles are not being used for their truth, but rather to demonstrate then-current events, including whether Ruthie was famous and why. When used for this purpose, the articles are not hearsay. Fed. R. Evid. 801(c)(2); see also Schickel, 925 F.3d at 872 n.1. Second, the articles are often admissible as statements of a party opponent. Fed. R. Evid. 801(d)(2)(B). In the eight years preceding this litigation, Exile repeatedly manifested its belief in the articles by posting them to its social media accounts and displaying them at its Brewpub. (See, e.g., ECF 90-3, p. 265 (sharing a 1953 Rave article on Instagram with the caption, "Ruthie Fontanini,¹ buxom operator of Ruthie's Lounge in Des Moines, Iowa, delights customers with her beer-pouring ability."); id., pp. 267-68 (sharing a 1956 San Mateo Times article on Facebook with the caption, "We had heard rumors about Ruthie and taxes, but now we know it's true!"); id., p. 288 (sharing a 1953 Charleville Times article with the tweet, "We always knew Ruthie was famous on a national level but we've found a couple things that prove her fame on an international scale!"); id., p. 291 (sharing a picture of a framed copy of an original 1976 article with the tweet, "Next time you visit the brewery check out the articles and pictures of Ruthie on our wall downstairs!").) In fact, the events recalled in those articles have made their way, literally, onto the side of Exile's products. (See, e.g., ECF 119-1, ¶ 53(d) (a label of Exile's Ruthie beer bottle begins, "In 1953, 23 year old Ruthie opened her lounge in Des Moines...."); id., ¶ 53(a) (on a Ruthie can, stating "the tips [Ruthie] made were so exorbitant that they tried to impose a burlesque tax on her"); id., ¶ 53(c) (on a Ruthie can, "[h]er unique serving style became so renowned a Hollywood star advised her to raise her prices and soon she was selling drafts for three times the standard rate").) Even in this litigation, Exile occasionally uses the articles to establish facts. (See, e.g., ECF 112-2, ¶ 5 (Exile's fact that "[b]ased on these articles, Ruth 'dropped out of sight' in the mid 1950's.").) This is more than enough to classify the articles as adoptive statements. See Wagstaff, 760 F.2d at 1078.

Third, in light of the above facts, the Court cannot credit Exile's newfound cynicism toward the articles. See Segal v. Metro. Council, 29 F.4th 399, 403 (8th Cir. 2022) (genuine disputes must be substantiated with probative evidence). Instead, since Exile does not credibly dispute the facts within the articles, the Court would consider them for the truth of the matter asserted under the residual hearsay exception. Most of the articles were written contemporaneously with the events in question and are consistent with one another as to pertinent facts. (ECF 104-3, ¶ 2 (forty-three of forty-seven articles were written in the 1950s and described Ruthie's bar trick, business, court battles, and divorces).) The timing and consistency help provide "sufficient guarantees of trustworthiness." Fed. R. Evid. 807(a)(1); see Hicks v. Charles Pfizer & Co. Inc., 466 F. Supp. 2d 799, 808-09 (E.D. Tex. 2005) (admitting articles from the 1960s that were consistent and written "long before any motive to fabricate arose"). Additionally, and equally importantly, the articles are "more probative on the point[s] for which [they are] offered than any other evidence that [the Estates] can obtain through reasonable efforts." Fed. R. Evid. 807(a)(2). Since the events in question occurred seventy years ago, first-hand witnesses are almost certainly unavailable. Newspaper articles and photographs are therefore among the best evidence of Ruthie's life, particularly when the objecting party has built a brand out of them.

The Court's determination that the newspaper articles are generally admissible is subject to a few specific objections, discussed where relevant below.

B. Undisputed Facts.²

1. The 1950s: Ruthie's Popularity.

The following facts are either undisputed or, where genuinely disputed, interpreted in the light most favorable to the non-moving party. Smith v. Ashland, Inc., 250 F.3d 1167, 1171 (8th Cir. 2001). This litigation centers around the name and likeness of Ceva Ruth-Lucille Bisignano, known professionally as "Ruthie." See Est. of Bisignano v. Exile Brewing Co., LLC, No. 422CV00121SHLSBJ, 2023 WL 3479173, at *1 (S.D. Iowa Feb. 24, 2023). In the 1950s, Ruthie owned and operated Ruthie's Lounge in Des Moines, Iowa. Id. At the Lounge, Ruthie performed a bar trick of "filling two pint glasses while balancing them on her breasts and serving them without ever touching them with her hands." Id. She kept a sign on her wall promoting her stunt, telling patrons to "[a]sk for the well balanced beer." (ECF 124, ¶ 3.) Ruthie attracted the attention of various news outlets, with at least forty-seven articles written about her between 1952 and 1996. (ECF 104-3, ¶ 2.) These articles are the subject of considerable disagreement between the parties.

The Estates claim the articles establish that Ruthie "became famous" in the 1950s for her bar trick. (ECF 124, ¶ 2.) Exile disputes that Ruthie was famous at all or that any recognition she did have was linked to her bar ownership or bar trick. (ECF 104-3, ¶ 2.) This much, however, is clearly true: of the forty-seven articles in the record, forty-three were written in the 1950s. (Id.) Thirty-two of the articles were published in Iowa and fifteen were published elsewhere, including: New York (3), California (1), Minnesota (1), Florida (1), Arizona (2), Mississippi (1), Alabama (1), Indiana (2), Wisconsin (1), Tennessee (1), and Australia (1). (Id.) Twenty-three articles reference Ruthie's marital issues, particularly her divorce proceedings and the impact those proceedings had on her lounge ownership. (Id.)

It is similarly beyond dispute that many of the articles reference Ruthie's balancing act, with the...