Adding clickbait title isn’t false advertising or fraud on author

Dankovich v. Keller, 2017 WL 4081852, No. 16-13395 (E.D.
Mich. Sept. 15, 2017)
Interesting dispute: the pro se litigant didn’t like the
editing of his essay, including the clickbaity headline added by the editors,
and sued for various fraud/false advertising claims. The magistrate judge
recommended denial of leave to amend/dismissal of various claims, and the
district judge agreed.
Dankovich wrote an essay about his experience as a young
prisoner in solitary confinement.  He
sent a draft to defendant Eli Hager, an editor at defendant The Marshall
Project, a non-profit news organization that focuses on the criminal justice
system. He called the essay The Riving, which dealt with “how quickly solitary
confinement can institutionalize and mess with the mind of an adolescent.” Hager
requested a few alterations and stated “[j]ust like last time, my higher-up
editor will have the final say, so I don’t want to make any promises. But I
definitely CAN promise that if you keep working on these pieces and future
submissions, you will definitely be published here.” He responded, and then
Hager sent him “the latest” version and said that it had moved to the top of
the queue for publication. The Marshall Project, in collaboration with
defendant VICE, published the essay under the title I’m Losing My Mind after
Refusing to Plead Insanity for Murdering My Mom. Dankovich also alleged other
changes to the text of his essay, including that he pleaded no contest to the
murder of his mother when he pleaded guilty, and that “around”—not “on” — his
eleventh birthday he was taken to the hospital for physical abuse by his
mother.  (The plea information was
apparently later corrected.)  Dankovich
objected to the published version but Hager told him that VICE Media wrote the
headlines and wouldn’t be changing this one.
Dankovich sued for copyright infringement (not addressed
here) and Lanham Act violations, and tried to amend the complaint to add fraud
claims.  The court agreed that Dankovich
couldn’t adequately plead fraud based on Hager’s statements to Dankovich about
the essay: none of Hager’s statements contained a representation that the essay
was returned to Dankovich in final version, and thus Dankovich couldn’t allege
reliance on a false statement.  The
statement, “My editor just informed me that she liked your piece (‘The Riving’)
so much that she’s moving it to the top of our production queue,” wasn’t a
statement that the piece would be published as submitted, nor was the statement
that “[a]ll of the different parts are still yours, but they’ve shifted around
a lot of lines to make things pack more of a punch” false in context, which
included Hager’s statements that he wanted Dankovich to see the edits “since
it’s your piece” but that “this kind of editing happens with all of our pieces.”
The statement “[a]ll of the different parts are still yours” was thus, in
context, not a representation about the published version would be “all his.”  Dankovich’s subjective interpretation was
wrong, but that didn’t make out a fraud claim.

Lanham Act claim: Initially, Dankovich only pled
§43(a)(1)(A) claims, but wanted to argue false advertising: “Defendants
continue to advertise a completely false statement which Plaintiff has never
written or uttered with Plaintiff’s name online, advertisement which furthers
The Marshall Project’s business and political goals.”  The initial complaint argued that the
headline was falsely attributed to him. 
Considered as false advertising, this fell short: there were no facts
alleging that any false statements were made in “commercial advertising or promotion.”
Even assuming implied falsehood, he didn’t allege facts showing that a
“substantial portion” of the 100,000 people who read the essay were deceived by
the title, other parts of the essay, or defendants’ attribution of the essay to
him, or facts showing materiality to a purchasing decision.  Also, Dastar
prevented any “origin”-based claim—an interesting entry into the trend of using
Dastar to resolve issues that also
might be Rogers v. Grimaldi type
cases of affirmative (alleged) misrepresentations of authorship.

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