Amazon Defeats Publicity Rights Lawsuit Over ‘A Gronking To Remember’ Book Cover (Forbes Cross-Post)

Greg McKenna writes as a woman using the pen name Lacey Noonan. In 2014, McKenna wrote the book “A Gronking to Remember,” an erotic “fan fiction” book about New England Patriots tight end Rob Gronkowski. He self-published the book digitally via Nook, Kindle and iBooks and in paperback form. For reasons that are beyond my comprehension, this book became a sensation, including mentions on The Tonight Show and Jimmy Kimmel Live and references at Super Bowl XLIX press day. It even spawned a parody Funny or Die video featuring Gronkowski himself.

It’s unclear how McKenna obtained the photo in question (the complaint is curiously silent about that), but the plaintiffs allege the book cover included an engagement photo of them without their permission. This cover got lots of exposure during the media frenzy, allegedly leading to “ridicule and embarrassment.” The plaintiffs sued McKenna and his self-publication vendors, including Amazon, Smashwords and Barnes & Noble, for publicity rights and privacy violations.

The court dismisses the self-publication vendors from the lawsuit because, legally, they functioned more like book “distributors” than “publishers”:

this Court will apply the old standards to the new technology, treating the Corporate Defendants’ process as if it were 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.

You might be surprised that the distributor/publisher distinction has been discussed rarely in Internet litigation. Congress largely mooted that legal distinction in 1996 when it enacted 47 USC 230 (Section 230), the law that says websites aren’t liable for third party content–irrespective of whether the service would have been classified as a “publisher” or “distributor” under traditional legal principles. The court expressly sidestepped the application of Section 230 in this case, perhaps because Section 230 excludes intellectual property claims and many courts consider publicity rights to be an IP. See the discussion in Almeida v. Amazon, another book cover case.

Due to Section 230’s effect on online jurisprudence, we also don’t see many cases exploring the distinction between “active” editors and “passive” technology providers. Clearly this court put the self-publication vendors into the “passive” category, but the court’s analysis justifying this classification was unfortunately thin. Comparing online self-publication tools to photocopy machine manufacturers is an old-school and ill-fitting analogy. For example, self-publication tools usually can stop publishing a the work by removing it from their servers, while photocopy machine manufacturers usually can’t stop customer photocopying once the machine is shipped. Similarly, self-publication tools usually profit from each book sale, whereas photocopy machine manufacturers typically don’t get any further revenue after initially selling the machine.

Like this case, in the rare situations where courts have applied common law principles, instead of Section 230, to online intermediary non-IP cases, defendants have done surprisingly well. See, e.g., Sandler v. Calcagni (a pretty similar case involving a print-on-demand defendant), Vesely v. Armslist and the old Lunney v. Prodigy case. Nevertheless, Section 230 means courts don’t have to contemplate the law of old technologies to find a close enough analogy to emerging technologies, which means Section 230 increases legal certainty and decreases litigation costs for defendants.

I approached lawyers for the plaintiffs and the self-publication vendors for comment about this ruling. I haven’t heard (yet?) from the plaintiffs’ lawyers. Amazon and Barnes & Noble declined to comment. Smashwords wrote: “Smashwords agrees with and appreciates the ruling, which is important and consistent with the core values of Ohio and the nation’s first amendment.”

Case citation: Roe v. Amazon.com, 2016 WL 1028265 (S.D. Ohio March 15, 2016). The complaint. Amazon’s motion for summary judgment.