“A Gronking To Remember” Plaintiffs Lose Right Of Publicity Appeal

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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For those of you in desperate need of Christmas present ideas for a New England Patriots fan, you can rest assured that your ironic backup option – a copy of the romance novel, A Gronking to Remember – is still available for sale. Truth be told, the self-published volume was not in serious danger of becoming unavailable, but the recent Sixth Circuit opinion in Roe v. Amazon.com cleared the book’s online retailers of liability for the unauthorized use of an unwitting couple’s engagement photograph on the original cover.

“It was a passion that could not be spiked”

In 2014, Lacey Noonan (a pseudonym for a guy named Greg McKenna) self-published A Gronking to Rememberan erotic fiction in which a young couple’s relationship is torn apart by a woman’s sexual obsession with New England Patriots tight end Rob Gronkowski and “the primal power of the Gronk spike.” The book bore the tagline: “it was a passion that could not be spiked,” and somewhat charmingly advised Amazon.com shoppers: “If you read two books about Rob Gronkowski this year, make the second one A Gronking to Remember.

The original cover of the book featured a photograph of a young couple, with Gronkowski goofily looming in the background. Relatively innocuous image, right?  Maybe, but it caused an awful lot of trouble for Noonan. First, in early 2015, the Boston Globe reported that the book was temporarily pulled from Amazon.com because the image of Gronk featured the “MHK” patch commemorating Patriots owner Robert Kraft’s late wife, Myra Kraft.  Noonan told the Globe:

I didn’t understand at the outset that Robert Kraft wouldn’t want Myra Kraft and her philanthropical works associated with this . . . Total newbie ignorance on my part. I believe — and hope — that’s the only problem anyone has with the book.

It wasn’t.

Jane and John Roe 

In agreements with his online retailers (Amazon, Barnes & Noble, etc.), Noonan represented that he had all the permissions necessary to use the images on the cover, including the photograph of the young couple. But it turns out that Noonan didn’t have permission; he simply “obtained the photograph from a public social media website.” The couple in question (who we know as “Jane and John Roe”) had no idea that the image was being used until they suddenly found themselves the visual centerpiece for snarky jokes about the book in the national media, including on the Tonight Show and Jimmy Kimmel Live.

Even though Noonan changed the cover image, the Roes filed suit against the author and the book’s online retailers. The complaint alleged that the Roes had been humiliated and embarrassed by their association with the book, and asserted a count for violation of the Ohio right of publicity statute, as well as common law claims for misappropriation of a likeness and false light invasion of privacy. Noonan moved for judgment on the pleadings, and the online retailer defendants moved for a quick summary judgment.

In March 2016, the Southern District of Ohio issued a ruling that rejected the author’s motion for judgment on the pleadings, but granted summary judgment dismissing the Roes’ claims against the online retailers. Although the online retailers claimed to be immune from suit under Section 230 of the Communications Decency Act, the Court sidestepped this issue. Instead, the Court held that the retailers were not “publishers” for purposes of Ohio law, but rather “booksellers” who, under the protection of the First Amendment, have no duty to monitor the content of the material they distribute, and therefore cannot be found liable for said distribution unless they “knew or had reason to know about the alleged wrongdoing.” The Roes appealed.

The Sixth Circuit Affirms

Last week, the Sixth Circuit issued its ruling in the matter. The Sixth Circuit “questioned” (in fact, completely disregarded) the lower court’s First Amendment analysis, but affirmed on other grounds.

The Sixth Circuit first addressed the right of publicity claims. Proof of either cause of action requires the unauthorized use of a name or likeness for commercial purposes, including proof that the name or likeness in question has “commercial value” in the relevant context. Here, the Sixth Circuit held that the record was bereft of any evidence that the Roes’ image had “commercial value” or, more specifically, that there was any commercial value in associating their likeness with the online sale of the book. On that basis, neither right of publicity count could be sustained.

As to false light invasion of privacy (you can read more about the elements of this cause of action here), that count required the Roes to prove not only that the defendants placed them in a false and highly offensive light, but that the defendants had knowledge of the falsity. Here, the falsity in question was the implication that the Roes has given permission for their image to be used on the cover. Because each online retailer was able to present a signed (or clicked-through) agreement from Noonan swearing that he had permission to use the photograph, it was essentially undisputed that the online retailers had no knowledge of that falsity. The Roes therefore could not hope to meet this element with respect to the online retailers.

Next Steps

Still pending in the Southern District of Ohio are the Roe’s claims against the author.  The Roes will have a hard time hanging on to their right of publicity claims, because their inability to show commercial value presumably carries over to the case against Noonan. However, the Roes’ false light invasion of privacy claim against Noonan appears to be unaffected by the Sixth Circuit’s holding.

Meanwhile, the second installment in Noonan’s “Rob Gronkowski Erotica Series,” entitled Chad Goes Deep in the Neutral Zone, is now available on Amazon, as is his no-doubt equally heartwarming tome: I Don’t Care if My Best Friend’s Mom is a Sasquatch, She’s Hot and I’m Taking a Shower With Her.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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