170 F. Supp. 3d 1028
S.D. Ohio2016Background
- In 2014 defendant author "Jane Doe" (real name Greg McKenna) self-published an erotic book, A Gronking to Remember, whose original cover used plaintiffs John and Jane Roe’s engagement photograph without their consent.
- The book was made available through self-publishing platforms/retailers: Amazon (KDP/CreateSpace), Barnes & Noble (NOOK Press), and Smashwords; the cover was later changed after complaints and counsel’s letter.
- Plaintiffs sued for (1) commercial appropriation of persona under Ohio Rev. Code § 2741, (2) common-law invasion of privacy (appropriation/false light), and (3) liability under Restatement (Second) of Torts § 652(e); claims against corporate defendants allege they published/republished the work.
- Jane Doe moved for judgment on the pleadings; Amazon, Barnes & Noble, and Smashwords moved for summary judgment asserting they were distributors (not publishers), their role was incidental, and CDA/First Amendment protections applied.
- The court denied Jane Doe’s Rule 12(c) motion, finding plaintiffs plausibly alleged (a) use of a photograph qualifies as persona under § 2741, (b) common-law appropriation/false light claims survive, and (c) factual disputes about intent/recklessness preclude judgment on the pleadings as to Doe.
- The court granted summary judgment for the corporate defendants, concluding the record did not establish they acted as "publishers" (as opposed to distributors/utilizers of a self-publishing platform) and therefore they were not liable on plaintiffs’ claims; CDA § 230 analysis was unnecessary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether use of the engagement photo is actionable commercial appropriation under Ohio Rev. Code § 2741 | Photo is an aspect of persona with commercial value and was used on a product cover without consent | Author/defendant says cover use is exempt (literary work), incidental, or lacks commercial-purpose element | Court: Photo qualifies as persona; literary-work exemption doesn't cover separate photograph; Doe not entitled to judgment on pleadings |
| Whether plaintiffs stated common-law invasion of privacy / appropriation / false light claims | The cover appropriated plaintiffs’ likeness, causing humiliation and false light; statutory remedies do not supplant common law | Defendants say statute preempts common-law claims or plaintiffs failed to plead required elements | Court: Statute does not supplant common law; plaintiffs sufficiently pleaded appropriation and false light claims to proceed against Doe |
| Whether corporate defendants (Amazon, B&N, Smashwords) are publishers (and thus potentially liable) or mere distributors/incidental users | Corporates acted as publishers: provided platform, formatting, distribution, and could require cover changes — functionally like publishers | Corporates say they are distributors/self-publishing platforms who did not create content, reviewed only at a high level, and lack publisher-level editorial control | Court: Facts do not support treating corporates as publishers; they are not liable as publishers under Ohio law; summary judgment for corporates granted |
| Whether First Amendment / CDA § 230 protect corporate defendants | Plaintiffs argue corporates’ role put them within publisher liability bounds | Corporates raise First Amendment/distributor protections and CDA shield as alternative defenses | Court: Because corporates were not publishers, court did not reach CDA § 230 or First Amendment defenses (summary judgment granted on publisher/distributor ground) |
Key Cases Cited
- Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (recognition of appropriation/invasion of privacy principles)
- Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio; adopting false light tort under Restatement (Second) § 652(e))
- Smith v. California, 361 U.S. 147 (distributor liability and First Amendment limits on imposing strict monitoring duties)
- Lerman v. Flynt Distrib. Co., 745 F.2d 123 (distributors generally have no duty to monitor content to avoid chilling speech)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden-shifting standard)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (standard for genuine issue of material fact on summary judgment)
- James v. Bob Ross Buick, Inc., 167 Ohio App.3d 338 (Ohio appellate recognition that non-celebrity persona may have commercial value and statutory/common-law remedies)