Online sellers did not ‘publish’ book using couple’s likeliness without permission
By Thomas Long, J.D.
Retailers Amazon.com and Barnes & Noble, Inc., and ebook distributor Smashwords Inc. were entitled to summary judgment in their favor on claims that they violated a married couple’s publicity rights in violation of Ohio law in connection with an erotic book that displayed the couple’s engagement photograph on the cover, the federal district court in Dayton has decided (Roe v. Amazon.com, March 15, 2016, Rose, T.). Amazon, Barnes & Noble, and Smashwords did not “publish” the book for purposes of the Ohio publicity rights statute by providing self-publishing services to the book’s author and then marketing the book online. However, the couple adequately pleaded a claim against the author for commercial use of the photograph without permission.
Sometime in 2014, defendant Jane Doe (later discovered to be a man named Greg McKenna who writes under the name “Lacey Noonan”) wrote a book called A Gronking to Remember and had it published via self-publishing services provided by Amazon, Barnes & Noble, and Smashwords. These corporate defendants sold the book on their websites in digital formats and in paperback. The book’s cover showed a photo of the plaintiffs—who filed as John and Jane Roe—taken during their engagement prior to their wedding. The photo allegedly was appropriated by the defendants for commercial gain without permission, in violation of Ohio Revised Code §2741. According to the Roes, the book was offensive, and use of their image had held them up to ridicule and embarrassment. The Doe defendant moved to dismiss on the pleadings; Amazon and Barnes & Noble moved for summary judgment.
Motion on the pleadings. Jane Doe asserted that the Section 2741 claim should be dismissed because: (1) the Roes’ identities had no commercial value; (2) Doe did not use the photograph for a commercial purpose; and (3) the Roes failed to plead any facts to demonstrate the required element of persona. The court rejected all three arguments.
Commercial value. Doe asserted that there was no commercial value in the Roes’ identities because they were not celebrities. Also, Doe argued that the use of their photo was allowed because the book was a literary work. Celebrity status is not, however, a requirement to recover under the statute, the court said. Although the photo did not have widely marketable commercial value, appropriation of the Roes’ image was considered a usurpation of their property rights. It would be proper to vindicate the Roes’ right to use of their image, even if they could not prove actual damages, the court said.
Commercial purpose. As for the argument that Doe’s book lacked a commercial purpose as a “literary work,” the court adopted the definition of “literary work” in the Copyright Act, which specified that such a work must be “expressed in words, numbers, or other verbal or numerical symbols or indicia.” Under this definition, only the author’s manuscript could be considered a literary work; the cover photo was a separate work. The manuscript was not at issue in this case, only the image.
Persona. Section 2741 defined “persona” as “an individual's name, voice, signature, photograph, image, [and] likeness.” The alleged use of the Roes’ photo constituted the use of their persona under the statute, the court said.
Motions for summary judgment—“publisher” status. The corporate defendants asserted that they were entitled to summary judgment on the Section 2741 claims because they were not publishers of the book and that any use on their part was incidental.
Ohio law distinguished between mere incidental use of a person’s name and likeness, which was not actionable, from appropriation of the benefits associated with the person’s identity, which was. The corporate defendants alleged that they did not publish the book, but instead that Jane Doe used their systems to publish it. In the court’s view, this amounted to the corporate defendants “contractually agreeing to let the inmates run the asylum.” The Roes were not a party to this contract, the court noted, and additional facts were required to resolve the question concerning publication of the book.
The Roes contended that the defendants acted as publishers by creating a platform that allowed Doe to publish his book. The court pointed out that the publishing process involved the steps of editing a book for grammar and flow, marketing, and designing the cover. The defendants did not conduct the editing and design steps as part of their self-publishing services, which could also be thought of as “self-editing.” Traditionally, publishing meant to place a book in final form for distribution to booksellers for sale; the corporate defendants did not engage in writing or editing content in the ordinary course of their business. Rather, the author conducted those steps as part of using the self-publishing platforms. The defendants did engage in the publishing steps of printing the book and marketing it to consumers via their websites.
The court agreed with the defendants that they did not constitute “publishers” for purposes of the statute. The defendants’ self-publisher processes were treated as if they were, technologically, “the next logical step after the photocopier.”
“Just as Xerox would not be considered a publisher and held responsible for an invasion of privacy tort carried out with a photocopier, Corporate Defendants will not be liable as publishers for the tort allegedly committed using their technology,” the court said. Accordingly, the corporate defendants’ motion for summary judgment was granted.
The case is No. 3:15-cv-00111-TMR.
Attorneys: David Eugene Beitzel (Beitzel Law Office) for John and Jane Roe. John F. Marsh (Hahn Loeser & Parks LLP) and Deepak Gupta (Farella Braun + Martel, LLP) for Amazon.com. Aneca E. Lasley (Squire Sanders [US] LLP) for Barnes & Noble Inc. Daniel Perry Mead (Zeiger Tiges Little & Lindsmith LLP) for Apple Inc.
Companies: Amazon.com; Barnes & Noble Inc.; Apple Inc.
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