Federal Court Finds eBook Distributor Not a Publisher for Right of Publicity Violation
BY JERRY GLOVER
May 2, 2016
Self-publishing through Amazon and similar ebook services has resulted in thousands of books being made available to the public on-line eliminating the need for a traditional publishing house. But can an ebook distributor also be one of those traditional publishers at the same time? That was the question a federal district court in Ohio had to decide recently in a case involving a claim from two plaintiffs that several ebook companies had violated their right of publicity. Roe v. Amazon.com, 2016 WL 1028265 (S.D. Ohio March 15, 2016).
Author Larry Noonan (a pseudonym) wrote a novel entitled “A Gronking to Remember.” The word “Gronking” refers to Patriots tight end Rob Gonknowski. The book was a sexploitation novel containing several uses of Gronkowski’s name in connection with sexual acts. The cover of the book contained a photograph of the Plaintiffs taken during their engagement prior to their wedding. The photo was used without plaintiff’s consent. They had no connection to the author or Gronkowski. See the book cover below.
The plaintiffs sued the book author and the distributors of the book–Amazon.com (Kindle), Barnes & Noble (Nook) and Apple which published the book in ebook and other formats. The court found that the author’s use of the plaintiffs’ photo violated the Ohio right of publicity statute. That statute prohibits the use of a person’s name, likeness, voice, signature, photography or appearance for commercial purposes without written consent. Ohio Rev. Code Sec. 2741.0-2(B). A second issue was whether the ebook distributors could also be held liable for violating that same statute. The distributors claimed they could not be held liable for violating the statute because they were not publishers of the book. They claimed that as distributors they did not know and did not have any reason to know of any wrongdoing relating to the book’s content including that the photo was used without permission.
The court noted that the Ohio statute applies only if the defendant is a publisher since the Ohio right of publicity statute makes a party liable only if that party has appropriated to their use or benefit the name or likeness of the plaintiff. The distributors argued that the book author had used their systems merely to “print” and distribute the book so the defendant’s only served as distributors. The court noted that the author had followed the following procedure: The author uploaded the manuscript and cover of the book to the applicable distributor. The author agreed to the distributor’s terms and conditions including a representation that the author owned all rights to the material and that the material did not violate anyone’s rights. The distributors reviewed the book only for pornographic images and checked the text for offensive material and plagiarism.
After the Gronking author received a letter objecting to the use of their photo on the cover, the author notified the distributors. The cover was changed. The court noted there was a “paucity” of law in Ohio as to whether the provider of a self-publishing service was a publisher. The plaintiffs claimed the distributors met the colloquial, everyday understanding of what a publisher means citing a dictionary definition that publisher as one who distributes copies of a work to the public. The plaintiffs also argued the companies should have used traditional publisher vetting processes that would have prevented the author from distributing the book with the offending photo.
The court described the tradition publishing process as including editing the book for grammar and “flow,” marketing and designing the book cover. But here, the court noted, the defendants did not conduct the editing and design steps. The court added that the publishing industry understands self-publishing to mean only that the book is placed in final form for distribution to booksellers and customers by the self-publishing company and that they do not write or edit content. The only thing the defendants provided, the court concluded, was a marketing platform and advertising space that the author uses once the book is published. The court noted that the only thing the distributors did was to format the book so that it fit the specifications for the publishing platform.
The plaintiffs argued that, like any publisher, the defendants had access to the author to request changes in the book and could require authors to change the cover photo. A mere distributor or bookseller, they noted, could not do that. They also noted that the self-publishers had a profit sharing arrangement with the author which a bookseller does not. But the distributors countered arguing that it would be impractical and expensive for them to review each and every piece of content that authors published using their process. The court agreed with the defendants noting that the cost of self-publishing through the internet has led to hundreds if not thousands of books, even if not worthy of publication, are being published
The court noted that the First Amendment does not require bookstores and other distributors to monitor the content of the material they distribute to avoid censorship. Such a duty might also lead to a depletion of books available to the public if sellers and distributors were required to inspect all materials they handle.
Ultimately the court decided that old standards would be applied to new technology analogizing the defendants to the Xerox. The court noted that Xerox would not be considered a publisher and held responsible for the content of material copied on that machine. So the defendant distributors in this case would not be considered liable as publishers for content. The court concluded that as mere distributors the defendants could not be liable for any right of publicity violation suffered by the plaintiffs.