August 01, 2006
Amazon’s Display of Book Cover Doesn’t Violate Publicity Rights—Almeida v. Amazon.com
By Eric Goldman
Almeida v. Amazon.com, Inc., 2006 U.S. APP. LEXIS 17989 (11th Cir. July 18, 2006)
Product photos on e-commerce websites’ product pages are a notorious liability trap. During my tenure at Epinions, product page photos were the only reason why we actually got sued (twice…ugh).
Product photos can raise some pernicious copyright issues, but in this case, the plaintiff sues Amazon for publicity rights violations. Ultimately, the court rules in favor of Amazon, effectively creating a strong precedent that online booksellers are immune from right of publicity claims for displaying book covers, even if the publisher in fact violated the right of publicity. However, the court indulges in a sloppy analogy to offline bookstores that may limit the scope of this opinion to just online booksellers and perhaps a few other media vendors. The case is also noteworthy for a goofy but irresolute discussion of 47 USC 230.
A publisher published a child’s photo on the cover of a book. The publisher got the requisite publicity consent for the first edition, but there are differing views about whether the consent extended to a second edition. Amazon displayed the second edition's book cover on its product page for the book. The plaintiff sued Amazon for publicity and privacy rights violations (these ultimately merged) and civil theft.
Right of Publicity and 47 USC 230
The district court dismissed the publicity rights claim based on 47 USC 230. This was an interesting ruling because 47 USC 230 doesn’t preempt “intellectual property claims,” so the question arises—is a publicity rights claim an IP claim? A precedential case (Perfect 10 v. ccBill) expressly says yes, Black’s Law Dictionary includes publicity rights in the definition of IP, and I venture that most IP professors cover publicity rights (albeit briefly) in IP survey courses. So I think many of us have assumed/believed that 230 does not preempt publicity rights claims.
The appeals court discusses this issue in some detail but ultimately punts on the question. Instead, it explicitly says it’s not opining on the question, basing its ruling on other grounds. So a definitive resolution of 47 USC 230’s application to publicity rights claims will have to wait another day.
Along the way, the court drops some very unfortunate dicta into a footnote. Agreeing with some confusing dicta from the 7th Circuit’s Doe v. GTE case, this court says 230(c)(1) is “phrased as a definition,” even though the footnote acknowledges the extensive precedent treating it as an operative immunization. The court then continues:
there is no issue of actual or constructive knowledge because the Florida right of publicity does not impose upon interactive service providers an obligation to filter or censor content. Moreover, as a factual matter, there is no indication that Amazon had knowledge of the allegedly misappropriated image and it responded promptly to Almeida's notice by removing [the book] from its websites
This completely gratuitous language will unfortunately give plaintiffs a sense of false hope. As I’ve discussed repeatedly on this blog, actual or constructive knowledge is irrelevant to a 230 determination. See, e.g., Zeran. Yet, this court’s sloppiness will give plaintiffs more grist to try their tired and futile argument that scienter matters under 230. I’m very confident that the impending plaintiff frenzy will give the 11th Circuit the pleasure of revisiting this dicta to clarify itself.
Right of Publicity and Physical/Virtual Bookstores
Instead of 230, the court bases its dismissal on the text of the applicable publicity rights statute, which applies to using an image “for trade, commercial, or advertising purposes.” The court says that Amazon’s display of the book cover on a product page doesn’t qualify. Instead, the court analogizes the online bookseller to a physical space bookseller, where the product page is the equivalent of the bookseller placing books on its shelves:
Amazon's role as an internet bookseller closely parallels that of a traditional bookseller. Because internet customers are unable to browse through shelves of books and observe the actual book cover photos and publisher content, Amazon replicates the bookstore experience by providing its customers with online cover images and publisher book descriptions
The court also distinguished two Girls Gone Wild video cases because the defendants in those cases picked the women to showcase on the product packaging and advertising. In contrast, Amazon was reflected the book cover selected by the publisher.
The court concludes:
Amazon's use of book cover images closely simulates a customer's experience browsing book covers in a traditional book store. Thus, it is clear that Amazon's use of book cover images is not an endorsement or promotion of any product or service, but is merely incidental to, and customary for, the business of internet book sales
It’s always dicey to make analogies between physical space and online contexts, and this analogy is suspect as a factual matter. First, there is no question that Amazon’s product page plays a major role in Amazon’s marketing and sales strategy. It is designed to place well in the search engines and uses a variety of tricks to extract additional sales from the customer. So treating the product page as the equivalent of a store bookshelf is a very charitable view.
Second, and perhaps more importantly, Amazon displays book covers all over its website, not just on the product page. Amazon uses the covers on personalized recommendation pages, in search results, in merchandising emails to its customers, and in content it syndicates to its affiliates (and, I suspect, to other third parties). Basically, Amazon does a ton of marketing for itself using book covers, so Amazon absolutely uses book covers to increase its sales. This sounds a lot like advertising/commercial purposes to me.
Ultimately, as a policy result, I think the court got it right. Amazon is merely depicting the book cover chosen by the publisher, so this ought to be a “contributory” or secondary publicity rights claim—and I don’t think there should be such a doctrine (admittedly, I haven’t researched that topic).
In any case, by making its clumsy analogy to browsing an offline bookstore's shelves, the court effectively limits this precedent to websites that can analogize their pages to such shelves--online book retailers, online music sellers, maybe online poster sellers. However, I think it would be tough to stretch this analogy to, say, search engines—an issue I believe is still live in the Perfect 10 v. Google case.
Finally, the plaintiff alleged civil theft, which requires knowingly obtaining/using another’s property with the intent to appropriate the property for his/her use. In the context of physical goods, this makes complete sense. In the content of intangible goods, the scope of this statute is very confusing. In copyright cases, we normally don’t have to worry about this claim because it’s preempted by federal copyright law. However, in the context of a publicity rights claim, the copyright preemption doesn’t apply. Here, the court dismisses the claim for Amazon’s lack of scienter (because it didn’t pick the book cover). Even better for Amazon, the civil theft statute has a fee-shifting provision, so the court upholds an award of attorney’s fees to Amazon.
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