Gronk Has Another Day in Court
by Jerry Glover
November 22, 2017
Last year, we wrote about a case in Ohio involving ebook publishers, a writer, a sports figure (New England Patriots’ Ron Gronkowski) and a photograph of a couple used without their knowledge and consent on the cover of a sexploitation novel about the exploits of a football player. The novel was called “Gronk.” See that earlier article here http://lsglegal.com/federal-court-finds-ebook-distributor-not-a-publisher-for-right-of-publicity-violation. Here’s the original book cover on the left and the current cover on the right:
The couple sued the publishers, among others, for a violation of the Ohio right of publicity act. The trial court ruled in favor of the ebook publishes noting that they acted as distributors of the book not true publishers because they had no editorial input into the novel. They simply printed it and sold it. Therefore, the First Amendment prevented any claim of publicity violation.
On appeal the U.S Court of Appeals for the Sixth Circuit doubted the lower court’s First Amendment analysis, but affirmed the lower court decision for another reason. Roe v. Amazon.com, No. 16-3987 (6th Coir. November 21, 2017).
The Ohio Right of Publicity Act prohibits the use of any aspect of an individual’s persona for a commercial purpose. Ohio Rev. Code Ann. Sec. 2741.02(A). The Act defines “persona” as “an individual’s name, voice, signature, photograph, image, likeness or distinctive appearance, if any of these aspects have commercial value.” Id.at Sec. 2741.01(A). The appeals court found that the plaintiffs did not meet the “commercial value” requirement. The court noted that the plaintiffs did not have to be national celebrities to assert a right under the Act but they must at least “demonstrate that there is value in associating an item of commerce with [their] identity.” For some reason, the court added that mere “incidental use” of a per3son’s name or likeness was not actionable under the Act.
The Illinois Right of Publicity Act has no such “commercial value” requirement. A person need only prove that his/her name, likeness, etc. was used commercially without consent. Most other right of publicity statutes also lack the commercial value requirement. But even if an Ohio plaintiff must prove commercial value in his/her name likeness, isn’t it enough that the author of this novel chose to use the plaintiffs’ photo on the book’s cover. Doesn’t that show that at least the author believed there was some value in using the photo that would sell books. If the author did not think this couple would sell books, he wouldn’t have used them. So, Ohio may be in a world of its own. But even so, why did the appellate court feel it necessary to mention that incidental use of a person’s likeness was not actionable? In this case the plaintiff’s faces were plastered on the cover of a book. That is hardly “incidental use.”