Court: District Court, S.D. Ohio; March 15, 2016; Federal District Court
The Court has denied Defendant Jane Doe’s Motion for Judgment on the Pleadings and granted summary judgment to all other defendants, including Amazon.com, Barnes & Noble Inc., and Smashwords Inc. The case involves claims from Plaintiffs John and Jane Roe regarding the unauthorized use of their engagement photograph on the cover of Jane Doe's erotic book, "A Gronking to Remember," published by the Corporate Defendants. Plaintiffs allege wrongful appropriation of their persona under Ohio Revised Code 2741, invasion of privacy, and tort liability for violation of the Restatement (Second) of Torts § 652. They claim that neither they nor any copyright holder approved the use of their photograph, which they argue has caused them embarrassment and ridicule, especially after being featured in national media. The lawsuit was initially filed in Ohio state court and subsequently removed to federal court. Following amendments to the complaint, the motions for summary judgment were renewed by the Corporate Defendants, while Jane Doe sought judgment on the pleadings. All motions are now deemed ready for decision.
Plaintiffs seek recovery of actual damages, including profits from unauthorized use, and alternatively request statutory damages of $10,000.00. They also demand an accounting from Defendants to determine remedies, as well as punitive damages, attorney fees, court costs, and related expenses. Plaintiffs allege Defendants were aware or should have been aware of their lack of rights to use Plaintiffs' persona for commercial purposes, justifying a claim for treble damages. The Court will initially address Jane Doe’s Motion for Judgment on the Pleadings.
The standard for such a motion under Rule 12(c) mirrors that of a motion to dismiss under Rule 12(b)(6). All well-pleaded allegations from the opposing party's pleadings are accepted as true, and the motion may be granted only if the moving party is clearly entitled to judgment. Legal conclusions or unwarranted factual inferences are not accepted as true. A complaint must include direct or inferential allegations regarding all material elements of a viable legal theory and must provide sufficient factual matter to make the legal claim plausible.
Pleadings consist of the complaint, answer, and any attached written instruments. Courts may also consider public records, case records, and exhibits central to the claims when evaluating a Rule 12(c) motion. Since the claims are under Ohio law, the Court will apply the substantive law of Ohio as interpreted by its highest court, and in cases where that court has not ruled on an issue, the Court will predict how it would rule.
Doe seeks judgment on Roe's claim regarding the commercial use of persona under Ohio law. Ohio Rev. Code 2741.02(B) requires written consent from specified individuals to use someone's persona for commercial purposes. Persona includes an individual's name, voice, signature, photograph, image, likeness, or distinctive appearance when these elements possess commercial value. Without consent, an individual can pursue damages for unauthorized commercial use. Doe argues for judgment based on four points: (1) her use is exempt because Plaintiffs’ persona lacks commercial value; (2) her use of Plaintiffs’ photograph on a book cover is exempt under Ohio Rev. Code 2741.09; (3) Plaintiffs have not alleged sufficient facts to prove the necessary element of persona; and (4) Doe did not use the photograph for a commercial purpose.
She contends that Plaintiffs, lacking celebrity status, have no commercial value, and asserts that her use is permissible as it relates to a literary work. However, the statute does not require celebrity status for recovery. The court highlights that even if the photograph lacks broad marketable value, it still represents a property right that can be vindicated, regardless of actual damages. The court agrees with the precedent set in James v. Bob Ross Buick, which recognizes the value of a persona.
The term "commercial purpose" encompasses various uses related to commercial activities, advertising, promoting products, or fundraising. Literary or fictional works are exempt from this definition, but Ohio law does not clearly define these terms. Plaintiffs suggest adopting the federal copyright law definition of a literary work, which encompasses works expressed in words or symbols across various formats.
Plaintiffs argue that the photo in question does not qualify as a literary or fictional work, with the Court agreeing that only the author’s manuscript fits that definition under 17 U.S.C. § 101. The photo, regarded as a separate copyrightable element, was changed on the book cover while the manuscript remained unchanged. The Copyright Act separately defines "photograph" under "Pictorial, graphic, and sculptural works." Defendant Doe's manuscript is not central to this case; only the Plaintiffs' image is under scrutiny.
Defendant Doe contends that Plaintiffs failed to allege the persona element as defined in Ohio Rev. Code 2741.01, which includes an individual’s photograph. However, Plaintiffs assert in their complaint that the book cover features their photograph, satisfying the persona requirement. Additionally, Plaintiffs claim that Defendant Doe appropriated their photo for profit. As a result, Doe's motion for judgment on the pleadings regarding Count I is denied.
For their second claim of common law invasion of privacy, Plaintiffs face a challenge from Defendant, who cites Ohio Revised Code 2741.01(B) as preempting common law rights. However, historical references indicate that the statutory provision, adopted in 1999, does not supplant common law claims. The statute explicitly states that its remedies are additional to other legal remedies. Plaintiffs claim invasion of privacy through appropriation, referencing Zacchini v. Scripps-Howard Broad. Co., which establishes liability for appropriating another's name or likeness for personal benefit, regardless of commercial intent.
Defendants question the viability of the false light invasion of privacy claim, arguing it is invalid if the statement is clearly fictional. However, the nature of the book's content—depicting a woman fantasizing due to an inattentive spouse—may not be obviously fictional, leaving the determination to a jury. Plaintiffs also assert a claim of false light under the Restatement (Second) of Torts § 652(e), which has been recognized by the Supreme Court of Ohio in Welling v. Weinfeld.
Liability for placing someone in a false light arises if: (1) the false light is highly offensive to a reasonable person; and (2) the actor had knowledge of or acted in reckless disregard of the falsity. The highly offensive standard applies when a reasonable person would find the publicity seriously aggrieving, requiring significant misrepresentation of character or activities. In this case, the Roes’ engagement photo was used on the cover of "A Gronking to Remember," a book perceived as obscene, which may allow a jury to find that Doe acted recklessly regarding the implications of the photo. Doe's defense cites the incidental use doctrine, arguing his use of the photo is protected. However, this doctrine applies only to public figures, which the Roes are not. The Roes claim invasion of privacy based on the appropriation of their likeness for commercial gain, resulting in humiliation and false representation. Precedents indicate that invasion of privacy claims can be actionable regardless of the individuals' notoriety. Thus, Doe's motion for judgment on the pleadings is denied. Additionally, the standard for summary judgment under Federal Rule of Civil Procedure 56 requires that there be no genuine issue of material fact for the moving party to be entitled to judgment.
Summary judgment is denied if genuine factual issues exist that can only be resolved by a finder of fact in favor of either party. A party seeking summary judgment must initially demonstrate the basis for their motion and identify evidence that shows the absence of genuine issues of material fact. The burden then shifts to the non-moving party, which must present specific facts to establish a genuine issue for trial, going beyond mere allegations. The court must assume the non-moving party's evidence is true and draw reasonable inferences in their favor; credibility determinations are reserved for the fact-finder. In cases under Ohio law, the court applies the substantive law as interpreted by the Ohio Supreme Court and anticipates its rulings if the issue has not been directly addressed.
In the motion for summary judgment analyzed, the Corporate Defendants argue that they are not publishers of the book and that any use was incidental. They claim that as distributors, they were unaware of any wrongdoing related to the content and are protected by the Communications Decency Act. Under Ohio law, liability for invasion of privacy arises when one appropriates another's name or likeness for personal benefit, distinguishing between incidental use and actionable appropriation.
Incidental use of an individual's name or likeness is allowed. The Corporate Defendants contend they are not publishers, arguing that Defendant Doe independently used their systems to publish the book, suggesting that the Corporate Defendants effectively allowed Doe to operate without oversight. Importantly, the Plaintiffs were not involved in any contract between the Corporate Defendants and Doe. Doe uploaded his manuscript and cover to Amazon’s Kindle Direct Publishing (KDP) on December 29, 2014, and CreateSpace on December 31, 2014, agreeing to KDP’s Terms and Conditions and CreateSpace’s Member Agreement, which included assurances of owning all rights to the content. Amazon reviewed the material for inappropriate content, finding none, and the book became available electronically on January 2, 2015, with the print version available on January 3, 2015.
Before publishing the NOOK Book Edition, Doe assured Barnes & Noble that he possessed all necessary rights to the book and that its distribution would not infringe on any third-party rights. The NOOK Edition, featuring the Plaintiffs' image, was listed by Barnes & Noble on December 31, 2014, followed by the hard copy CreateSpace Edition on January 16, 2015. During this period, sales included 142 NOOK Book Editions and 27 print copies. After receiving a complaint from the New England Patriots regarding trademark issues, Doe notified Amazon of a cover change. On January 29, 2015, after being informed by the Plaintiffs’ counsel of their objection to the use of their photograph, Doe communicated to Amazon about removing the image. By January 30 and 31, 2015, Doe uploaded new covers for the book that did not feature the Plaintiffs' image, which were implemented by Amazon on January 30 and February 1, 2015, respectively. By February 2, 2015, both the NOOK Book Edition and CreateSpace Edition, which had depicted the Plaintiffs’ image, were removed from sale by Barnes & Noble.
On February 3, 2015, Barnes & Noble received a letter from the Plaintiffs’ counsel claiming unauthorized use of their image on a book cover. Following this, Barnes & Noble reached out to Doe to address the allegations and request new cover images, which Doe had already replaced. On February 24, 2015, the Roes initiated a lawsuit against Doe, Amazon.com, Barnes & Noble, and Apple, excluding Smashwords initially. The case highlights a lack of Ohio case law regarding invasion of privacy and the status of self-publishing service providers as publishers. The Corporate Defendants argue that the facts do not categorize them as publishers and assert that their use of the book cover was incidental and constitutionally protected. In contrast, the Plaintiffs argue that the Corporate Defendants function as publishers in a colloquial sense, providing platforms for authors similar to traditional publishing houses. They define "publish" as distributing copies of a work to the public, referencing Black’s Law Dictionary and a definition from Hugo Publishing. The Plaintiffs contend that the Defendants enabled Doe to publish his book despite a lack of traditional vetting processes that would have prevented the unauthorized use of the Plaintiffs' photo. The excerpt discusses the traditional publishing process and notes that while the Corporate Defendants do not engage in editing or design, they provide the necessary marketing and distribution services. Defendants identify as "booksellers," yet Barnes & Noble acknowledged its proactive role in addressing the cover image issue with Doe.
Amazon directed Doe to respond to an infringement allegation, with the Corporate Defendants having a cost-sharing arrangement with the author. Plaintiffs argue that booksellers typically do not have the authority to demand content changes from authors or publishers; only publishers possess such rights. The Corporate Defendants had access to Doe and could require changes to the cover image, which Plaintiffs claim signifies a publisher's role. The Defendants assert it would be impractical to review all third-party content published through their presses and argue that their use of the Plaintiffs' image was incidental and not a commercial appropriation. They claim Ohio law does not hold them liable and contend that the First Amendment protects booksellers from strict liability for authors' torts, emphasizing that there is no duty to monitor distribution content to avoid chilling free speech. Citing case law, they argue that imposing such duties on distributors would impose an undue burden on the First Amendment. The Corporate Defendants clarify that their publication was not sold in traditional outlets, highlighting the differences between historical publication costs and today's low barriers to publishing. They suggest that while some form of review may be beneficial, they should not be held liable as publishers for alleged torts committed through their technology, similar to how Xerox would not be liable for privacy invasions related to its photocopiers.
Plaintiffs failed to provide sufficient facts to classify the Corporate Defendants as publishers, making it unnecessary for the Court to examine their knowledge regarding potential rights violations by the Roes. According to established legal precedent, distributors cannot be held liable for distribution if they lack knowledge or reason to suspect wrongdoing related to the content. Since the Court determined that the Corporate Defendants are not publishers, it also did not assess their potential immunity under the Communications Decency Act. The Court denied Jane Doe's Motion for Judgment on the Pleadings and granted Summary Judgment for the Corporate Defendants, including Amazon.com, Barnes & Noble, and Smashwords, Inc., dismissing all claims against them. The Clerk is instructed to enter summary judgment in favor of these defendants. Jane Doe was ultimately identified as Greg McKenna, who writes under the pseudonym "Lacey Noonan." Apple Inc. was previously part of the case but was dismissed after it was clarified that Smashwords, Inc. produced the books sold on Apple's platform. The Plaintiffs did not specifically name Smashwords in their original complaint but reached an agreement with all defense counsel to amend the complaint to include Smashwords, making similar allegations against it as with the other corporate defendants.
