Judge Tosses SeaWorld Off Drowned Trainer Dispute

     ORLANDO (CN) – SeaWorld cannot intervene in the fight to conceal a video that shows an orca drowning its trainer during a 2010 performance, a federal judge ruled.
     Tilikum, a 20-foot-long male orca at SeaWorld’s Shamu Stadium in Orlando, dragged animal trainer Dawn Brancheau by her hair and drowned her during a Feb. 24, 2010, “Dine With Shamu” performance. Witnesses eating dinner near a subterranean viewing tank said they saw Tilikum playing with the corpse.
     The Orange County Sheriff’s Office had obtained a seven-minute video recording of the attack and rescue efforts from SeaWorld, and the Occupational Safety and Health Administration got a copy of that tape for its own investigation.
     Brancheau’s family has fought to ensure that the public does not see the video, which they characterize as “death scene materials.” In August 2011, they filed a reverse Freedom of Information Act request to block OSHA from releasing the tape.
     An appeal to revive the case, which U.S. District Judge Gregory Presnell dismissed in January, is currently pending.
     Last week, SeaWorld lost its defense of an amended intervener complaint to that case.
     SeaWorld sought a declaration that the video is exempt from disclosure under the Freedom of Information Act; the chance to fight disclosure of the video; and a ruling that it has sole rights to view, copy, display or distribute the video. It says OSHA must give “ample and advance, written notice of any FOIA request that would call for disclosure” of the video, and return the video upon completion of the investigation.
     One count of the complaint seeks an injunction under the Lanham Act, arguing that the likeness of Brancheau in combination with orcas is a famous mark.
     Noting the Lanham Act’s “commercial use” requirements, Presnell said SeaWorld failed to state a claim.
     “Even assuming that the video contains trademarked material, SeaWorld has failed to allege that OSHA has begun commercial use of its mark in commerce, or that it is about to do so,” he wrote.
     Likewise, the Freedom of Information Act does not provide a private right of action to enjoin disclosure, the decision states.
     Though SeaWorld also brought a challenge under the Administrative Procedures Act, Presnell said this claim fails, too, because such claims must follow a final agency action, and SeaWorld has identified none.

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