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Roe v.

Sixth Circuit affirms summary judgment in favor of online distributors of self-published book of erotic fiction, which used plaintiffs’ engagement photograph on its cover without their permission.

Greg McKenna authored a piece of erotic fiction about a married woman who becomes obsessed with New England Patriots football player Ron Gronkowski, A Gronking to Remember, and self-published it through online services owned by Smashwords Inc., and Barnes & Noble Booksellers Inc. McKenna used an engagement photo of plaintiffs that he found on their photographer’s website for the cover art of his book.

Despite its self-published status, the book received a great deal of attention in the months following its publication in anticipation of the New England Patriots’ participation in the 2016 Super Bowl. Gronking was featured on late-night comedy shows and in numerous online publications.

Plaintiffs sued McKenna and the corporate defendants, alleging that the use of their image on the cover of Gronking violated their common-law and statutory rights of publicity under Ohio law, and constituted the privacy tort of false light. After plaintiffs filed suit in Ohio state court, defendants removed the case to federal court. The district court granted summary judgment to the corporate defendants on grounds that as “distributors” as opposed to “publishers” they were broadly protected by the First Amendment, because their self-publishing platforms were the “next logical step after the photocopier.” The Sixth Circuit questioned the district court’s analysis, and instead based its decision on plaintiffs’ failure to adduce evidence needed to support its tort claims.

Specifically, the Sixth Circuit observed that, under both common law and statute, plaintiffs were required to show that there is value in associating an item of commerce with their identity or, put another way, that their name or likeness had some commercial or other value. The mere incidental use of a person’s name or likeness is not actionable. The circuit held that plaintiffs had failed to demonstrate that the corporate defendants derived any commercial value from the book’s incidental use of their likeness.

Plaintiffs also failed to show that the corporate defendants had the requisite degree of knowledge or recklessness to succeed on their claim of false light. The appeals court noted that, under Ohio law, “one who gives publicity to a matter that places the other in a false light” is liable only if the false light is highly offensive to a reasonable person and “the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter.” Because McKenna had, in the course of publishing Gronking on each of the platforms, warranted and represented that he had all necessary rights to publish the work, including the cover art, the plaintiffs failed to show that the corporate defendants had knowledge, or even reason to know, that McKenna’s use of the photo put the plaintiffs in a false light. There was therefore no basis for a jury to find the corporate defendants liable.

Summary prepared by Tal Dickstein and Erin Smith Dennis