John ROE; Jane Roe, Plaintiffs-Appellants v. AMAZON.COM; Barnes & Noble Booksellers, Incorporated; Smashwords, Inc., Defendants-Appellees, Apple Inc., et al., Defendants.
No. 16-3987
United States Court of Appeals, Sixth Circuit
November 21, 2017
565
At Aldridge‘s trial, Hull identified Aldridge as the shooter and testified that he saw only Aldridge, not Irving, with a weapon on the day of the murder. Irving offered the same account of the occurrences and added that Aldridge, wearing a white t-shirt, jeans, and a black jacket, ran away with approximately $2,000 of the money Clariett had brought to give Irving.
As stated earlier, Aldridge attempted at trial to deflect guilt from himself by seeking to admit into evidence a statement made by Clariett two days before the murder. In that statement made to a police officer, the victim related that Irving had threatened him and surmised that she had taken his car from the parking lot at his place of employment. Even had the statement been presented to the jury, however, we cannot say that, in light of that evidence, no reasonable juror would have voted to convict Aldridge of Clariett‘s murder. Despite Irving‘s alleged threats and supposed car theft, absolutely no evidence adduced at trial placed a gun in Irving‘s possession, and no witness testified that Irving—or anyone other than Aldridge—fired the shot that killed Clariett. To the contrary, the sworn testimony of Jeremy Hull corroborated Irving‘s claim that Aldridge approached the victim‘s car, pulled a gun from a plastic bag he was carrying, fired the fatal shot from near the rear passenger window of Clariett‘s Cadillac, and fled from the scene. Because a reasonable juror could conclude that Aldridge was guilty of murder and especially aggravated robbery beyond a reasonable doubt, the petitioner cannot establish his actual innocence such that he should be allowed to proceed with his habeas corpus claim despite his untimely filing of the petition.
CONCLUSION
In the absence of a showing of actual innocence, Aldridge cannot establish his right to equitable tolling of
David E. Beitzel, Shelee M. Busch, Law Office, Troy, OH, United States, for Plaintiffs-Appellants
Constantine L. Trela, Jr., Sidley Austin, Chicago, IL, Christopher A. Eiswerth, Sidley Austin, Washington, DC, for Defendant-Appellee Amazon.com, Inc.
Maribeth Meluch, Isaac Wiles Burkholder & Teetor, Columbus, OH, for Defendant Jane Doe
Elizabeth Rogers Brannen, Victor O‘Connell, Peter K. Stris, Stris & Maher, Los Angeles, CA, Dana Erin Berkowitz, Stris & Maher, New York, NY, for Defendant-Appellee Smashwords, Inc.
BEFORE: NORRIS, SUHRHEINRICH, and GRIFFIN, Circuit Judges.
OPINION
ALAN E. NORRIS, Circuit Judge.
Plaintiffs John and Jane Roe sued an individual author along with Amazon.com, Barnes & Noble Booksellers, Inc., and Smashwords, Inc. (the “Corporate Defendants“) over a book that used a picture of the plaintiffs on the cover without their permission. The plaintiffs now appeal the district court‘s grant of summary judgment in favor of the Corporate Defendants. For the reasons that follow, we affirm the judgment of the district court.
I.
In December 2014, Greg McKenna1 authored A Gronking to Remember (”Gronking“) and published it under the pseudonym Lacey Noonan. Gronking is a fictional work of erotica and satire featuring “the make-believe exploits of a married woman who becomes fascinated with New England Patriots football player Rob Gronkowski.” According to plaintiffs, Gronking “is less than tasteful and is offensive.”
McKenna decided to self-publish Gronking through several online services, including Smashwords, Inc., Kindle Direct Publishing (“KDP“), CreateSpace, and NOOK Press. Smashwords purports to be the largest distributor of self-published electronic books (“e-books“) in the world. KDP and CreateSpace are self-publishing services provided by Amazon.com, Inc., to create e-books and books in print. NOOK Press is an e-book platform offered by Barnes & Noble, Inc. Smashwords, KDP, CreateSpace, and NOOK Press played no role in creating, designing, or editing the cover of Gronking.
In order to self-publish his book through these companies’ platforms, McKenna had to agree to their various terms of service. Smashwords required that McKenna warrant that his book did not “violate any right of privacy which is libelous or violate any personal right or other right of any kind of any person or entity.” To utilize KDP and CreateSpace, McKenna had to represent to Amazon that he had all the necessary legal rights to his book, including the cover. McKenna had to make similar representations to Barnes & Noble. McKenna acknowledged making these warranties and representations to the Corporate Defendants.
Gronking received media coverage in connection with Gronkowski‘s participation in the 2015 Super Bowl. The cover of Gronking, which included the plaintiffs’ photograph, was displayed on The Tonight Show, Jimmy Kimmel Live, and at media day for the Super Bowl. The attention given to the book by the national media appears to be how the plaintiffs became aware that their picture was used on the cover of Gronking.
Following this media exposure, the plaintiffs filed a lawsuit against the Corporate Defendants and McKenna in the Common Pleas Court of Miami County, Ohio, which was later removed to the United States District Court for the Southern District of Ohio based on diversity of citizenship jurisdiction. McKenna filed a motion for judgment on the pleadings, and the Corporate Defendants filed a motion for summary judgment. The district court denied McKenna‘s motion but granted summary judgment in favor of the Corporate Defendants. Roe v. Amazon.com, 170 F.Supp.3d 1028, 1035, 1040 (S.D. Ohio 2016).
This appeal followed.
II.
We review a grant of summary judgment de novo. Carl v. Muskegon Cty., 763 F.3d 592, 595 (6th Cir. 2014). Summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
In its opinion, the district court emphasized the difference between “publishers” and “distributors,” holding that the Corporate Defendants were distributors broadly protected by the First Amendment because their self-publishing services were the “next logical step after the photocopier.” Amazon.com, 170 F.Supp.3d at 1038-40. The district court held that “[s]tates may not impose criminal or civil liability against booksellers or other distributors for distribution where the distributor neither knew nor had any reason to know of alleged wrongdoing pertaining to specific content.” Id. at 1040 (citing Smith v. California, 361 U.S. 147, 153 (1959)). We question the district court‘s First Amendment analysis. However, because the record cannot support a finding of liability on the part of the Corporate Defendants, the grant of summary judgment was proper and we not address that issue.
In their complaint, plaintiffs assert three claims against the defendants: wrongful appropriation of their persona in violation of
Under Ohio‘s right of publicity statute, “a person shall not use any aspect of an individual‘s persona for a commercial purpose.” See
Similarly, a defendant is subject to liability under the Ohio common-law right of publicity tort when he “appropriates to his own use or benefit the name or likeness of another.” Zacchini v. Scripps-Howard Broad. Co., 47 Ohio St. 2d 224, 351 N.E.2d 454, ¶ 1 of syllabus (1976), rev‘d on other grounds, 433 U.S. 562 (1977). Again, plaintiffs must demonstrate that their name or likeness has value, Id. at 458 n.4; see also James v. Bob Ross Buick, Inc., 167 Ohio App. 3d 338, 855 N.E.2d 119, 123 (2006) (“It is only when the publicity is given for the purpose of appropriating to the defendant‘s benefit the commercial or other value associated with the name or the likeness that the right of privacy is invaded.“). The mere incidental use of a person‘s name or likeness is not actionable in an appropriation claim. Vinci v. Am. Can Co., 69 Ohio App. 3d 727, 591 N.E.2d 793, 794 (1990) (per curiam).
Finally, while it is questionable whether the Roes alleged a false light invasion of privacy tort under Ohio law, we will assume that they did for purposes of this appeal. Under false light, “one who gives publicity to a matter concerning another that places the other before the public in a false light” is liable if “(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” Welling v. Weinfeld, 113 Ohio St. 3d 464, 866 N.E.2d 1051, 1059 (2007).
After a careful review of the record, viewing all facts in the light most favorable to the plaintiffs, we conclude that the plaintiffs have not offered any facts to support a finding of liability on the part of the Corporate Defendants. The Roes do not argue, and there is no summary judgment evidence in the record to suggest, that there was any commercial value in associating their likeness with the Corporate Defendants. At most, plaintiffs attempted to show that the association between the Roes’ image and the Corporate Defendants is incidental, which is not enough. Vinci, 591 N.E.2d at 794. Further, plaintiffs have offered no summary judgment evidence tending to show that the Corporate Defendants knew or had reason to know that McKenna was using their photograph without permission. Plaintiffs contend that the Corporate Defendants should have inquired as to whether McKenna owned the rights to the photo. But they did. In one form or another, each of the Corporate Defendants required that McKenna represent and warrant that his book did not violate the legal rights of others. Therefore, a jury could not reasonably find liability, and the district court‘s grant of summary judgment was proper.
III.
For the reasons above, the judgment of the district court is affirmed.
ALAN E. NORRIS
UNITED STATES CIRCUIT JUDGE