Amazon Beats Right of Publicity Claim for Use of Photograph on Book Cover
By Jennifer E. RothmanNovember 29, 2017
Last week the Sixth Circuit Court of Appeals in Roe v. Amazon held that booksellers Amazon.com, and Barnes & Noble (among others) could not be held liable for violating the privacy and publicity rights of a couple whose image was used without permission on the cover of an erotic novel displayed on those companies’ websites. Although the appellate court appropriately dismissed the claims against the booksellers for the third-party content, its route to get there is troublesome.
The case arose when the couple, who filed using pseudonyms, John and Jane Roe, objected to the use of a photograph of them taken during their engagement on the cover of an erotic novel. The book was self-published by Greg McKenna, writing under his own female pseudonym, Lacey Noonan. The McKenna-scribed book, A Gronking to Remember, is a sex-fueled fantasy about New England Patriots tight end, Rob Gronkowski. Amazon, Barnes & Noble, Apple and Smashwords allegedly displayed the image as part of the pages on their websites offering the book for sale.The book remains for sale with revised cover art on Amazon and elsewhere.
The couple objected to the use of their photograph and filed suit in Ohio state court, claiming a violation of Ohio’s statutory right of publicity, as well as of the state’s common law right of privacy. The case was then removed to federal court where a district court decision allowed the claims to proceed against the defendant Doe, aka McKenna, but rejected the claims against the third-party booksellers. The court concluded that the corporate defendants were distributors of the book, not publishers, and therefore could not be held liable for this third-party speech.
Although the Sixth Circuit appropriately affirmed the district court’s decision with regard to the corporate defendants, it did so on different grounds, and problematically concluded that Ohio law limits claims under its right of publicity only to those with independently commercially valuable identities. This jeopardizes the Roes’ potentially legitimate claims against Doe, as well as future claims brought under Ohio’s right of publicity by those who are not well known.
The district court had properly concluded that even though Ohio’s statutory right of publicity requires a plaintiff to have a commercially valuable persona, this requirement does not limit claims to celebrities. Instead, the court pointed to Ohio state court decisions that have held that the defendant’s use of the person’s name or likeness for commercial benefit indicates such a commercial value.
Confusion over what constitutes a commercially valuable person pervades right of publicity laws across the country. In California, where such a requirement does not exist under state law, federal courts have nevertheless sometimes read such a requirement into the law. And in a series of conflicting decisions by federal district courts in California involving lawsuits against Facebook for using its subscribers names and images in advertisements, the courts disagreed about whether commercial value should be determined by the fact that the use was valuable to the user (here Facebook) or by whether the person whose image was used has an independent commercial value.
As I have written, the better interpretation is that the use itself demonstrates the commercial value. Although the defendant Mr. McKenna may have had to pay more for the right to use NFL star Gronkowski’s name and image, he also would have had to pay the Roes for the use of their image on his cover. And, of course, it is possible (maybe likely) that the Roes would have declined to have their image used on the erotic fan fiction regardless of the offered payout―a choice that the law should also protect and empower.
Right of publicity laws seeking to prevent unauthorized uses of one’s name and likeness should not be limited to those with commercially valuable identities, and even when they are so limited (as in Ohio), they should be interpreted to protect anyone whose image is used for the defendant’s commercial benefit or commercial purpose. First Amendment and other speech-protective exemptions may apply to various uses, but as a prima facie matter right of publicity laws should protect both the famous and the obscure.
One might wonder why Rob Gronkowski, the star of this fan fiction, who undoubtedly does have a commercially valuable persona, has not sued over the unauthorized use of his name and identity in the book and in its title. It appears that Gronkowski has a sense of humor about the use of a fictional version of himself in porn, and enjoys the celebration of his sexual prowess. He even read from the book on Jimmy Kimmel Live―which you can watch here: Rob Gronkowski on Jimmy Kimmel.
Both the district court and the Sixth Circuit were right to throw out the claims against the bookselling websites, but the case should proceed against Doe based on the alleged facts. The Sixth Circuit's opinion is an unpublished one, but the district court is still bound by the conclusion that the Roes lack commercial value and cannot bring their statutory right of publicity claims. The Ohio state courts, however, are not bound by this federal court interpretation of state law, and thus far Ohio courts have concluded the opposite of the Sixth Circuit. Until the Ohio Supreme Court weighs in, the state courts should continue to follow their current path of affording claims to those without independently valuable personalities. The Sixth Circuit still has the ability to revise its unpublished decision to bring it in line with Ohio state appellate courts on this question of state law, and should do so.
Roe v. Amazon (6th Cir., Nov. 21, 2017)
Roe v. Amazon (S.D. Ohio 2016)
Roe v. Amazon Motion to Remove and Complaint