John Roe v. Amazon.com
714 F. App'x 565
6th Cir.2017Background
- In Dec. 2014 Greg McKenna self-published an erotica/satire novel, A Gronking to Remember, using a photograph of plaintiffs John and Jane Roe on the cover without their permission. The photo had been taken by a photographer and posted online with the Roes' consent.
- McKenna published via self-publishing platforms (Smashwords, Amazon’s KDP and CreateSpace, Barnes & Noble’s NOOK Press). The platforms did not design or edit the cover.
- Each platform required McKenna to represent and warrant that he had legal rights to the content and that the book did not violate others’ rights.
- Media attention around the book’s Super Bowl connection exposed the cover, prompting the Roes to sue McKenna and the corporate platforms in Ohio state court; the case was removed to federal court and the district court granted summary judgment to the corporate defendants (claims against McKenna remain pending).
- The Roes asserted Ohio statutory and common-law right-of-publicity claims and a false-light privacy claim, alleging unauthorized commercial use and public placement in a false light.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether corporate platforms can be liable for appropriation under Ohio law | Roes: platforms are liable for distributing the book with the Roes’ image on the cover | Platforms: they only provided self-publishing distribution and required author warranties; they lacked knowledge or reason to know of infringement | Court: No liability; summary judgment for platforms because Roes presented no evidence of platform knowledge or of commercial value from associating Roes’ likeness with the platforms |
| Whether plaintiffs’ likeness had commercial value required by Ohio statutory right of publicity | Roes: association with the book conferred commercial value | Platforms: plaintiffs did not show any commercial value in connecting the Roes’ likeness to the platforms | Court: Plaintiffs failed to show value/association; incidental use insufficient |
| Whether platforms knew or had reason to know author lacked rights to the photo | Roes: platforms should have inquired into McKenna’s ownership of the photo | Platforms: they obtained author warranties and had no notice of wrongdoing | Court: Platforms’ requirement of author warranties and lack of contrary evidence means no genuine issue of fact on knowledge |
| Whether false-light claim survives against platforms | Roes: placement of photo on book cover placed them in a highly offensive false light | Platforms: no knowledge/reckless disregard and no material falsity tied to platforms | Court: Assuming claim exists under Ohio law, plaintiffs offered no evidence of platform knowledge or recklessness; summary judgment proper |
Key Cases Cited
- Smith v. California, 361 U.S. 147 (distributor liability limited by First Amendment) (discussed in district court opinion)
- Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619 (right of publicity requires showing value in associating identity with commerce)
- McFarland v. Miller, 14 F.3d 912 (right of publicity is worthless without association/value)
- Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (appropriation principles for publicity/performances)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment allocation of burdens)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (summary judgment—drawing inferences)