Apple, Amazon, B&N Targeted in Publicity Rights Lawsuit
Yesterday The Hollywood Reporter published a story on a new lawsuit which could upset the ebook market.
It’s long been established that Amazon and other ebook retailers aren’t liable for pirated ebooks sold through their respective ebookstores; the DMCA sees to that. But it is less clear that the retailers are immune to other lawsuits relating to their ebookstores.
Take, for example, A Gronking to Remember. That real person fic erotica got a lot of media attention last year for its rather far-fetched premise, and it is now the subject of a publicity rights lawsuit.
According to The Hollywood Reporter, the couple whose image was used on the cover of Gronking is now suing (PDF) several ebook retailers as well as Lacey Noonan, the pseudonymous author, for violating the couple’s rights under Ohio’s Right of Publicity laws.
The lawsuit targets Noonan, and also Apple, Amazon.com and Barnes & Noble for allowing readers to access the work in iBooks, Kindle and Nook digital formats. The plaintiffs — captioned as "John Roe" and "Jane Roe" — are asserting violations of their rights of publicity under Ohio law.
How and why Noonan chose this image for her cover has not yet been explained. The lawsuit doesn’t rule out that the couple uploaded the photograph themselves to the Internet, but it says they "did not place the photograph on the internet for expropriation."
The couple featured on the book cover don’t like the media attention that ensued.
"The subject matter of the book, A Gronking to Remember, is less than tasteful and is offensive," says the complaint. "The use of the Plaintiffs image has held them up to ridicule and embarrassment. This outrageous connection has been further aggravated when the book, with the Plaintiffs image, has been reproduced in the media nationwide. The book has been shown as a source of ribald humor on The Tonight Show and Jimmy Kimmel Live as well as being displayed and read before the press at media day for the Super Bowl."
As a rule, I find the concept of publicity rights laws to be ridiculous beyond belief, but a quick read of the relevant laws (Ohio Code Ch. 2741) suggests that the couple does have a case.
Of course, Amazon disagrees. It has already filed a motion to dismiss (PDF), arguing that it is protected by Section 230 of the CDA (Communications Decency Act of 1996). That section of the CDA has been intepreted to give ISPs complete immunity to torts committed by users (Wikipedia), and Amazon makes a similar argument here.
Amazon said that the claims are barred because the plaintiffs "purport to hold Amazon, which is an interactive computer service, as the publisher or speaker of a purportedly infringing image, which was posted by users of the Amazon.com website". There are a couple rulings which suggest that Amazon has the law on its side, though of course there’s no guarantee that the judge will agree.
I’m hoping that Amazon prevails, for obvious reasons. Should the couple win, that ruling will put a damper on digital publishing as the ebook retailers take steps to protect themselves against future lawsuits.
image by Rumble Press