John Roe v. Amazon.com
714 F. App'x 565 (2017)
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Rule of Law:
An online distributor or self-publishing platform is not liable for an author's misappropriation of an individual's likeness when the individual's persona has no independent commercial value and the platform had no knowledge that the likeness was used without permission, having reasonably relied on the author's warranty of legal rights.
Facts:
- John and Jane Roe had a photograph taken to commemorate their engagement.
- With the Roes' permission, their photographer placed this photograph on his website.
- Author Greg McKenna found and downloaded the photograph from the internet without the Roes' permission or knowledge.
- McKenna used the Roes' photograph on the cover of his self-authored work of erotic satire, 'A Gronking to Remember.'
- McKenna utilized the online self-publishing services of Amazon, Barnes & Noble, and Smashwords (the 'Corporate Defendants') to publish and distribute the book.
- To use these platforms, McKenna was required to agree to terms of service in which he warranted and represented that he held all necessary legal rights to the book's content, including its cover.
- The book and its cover, featuring the Roes' photograph, received national media coverage on major television shows.
Procedural Posture:
- John and Jane Roe filed a lawsuit against Greg McKenna and the Corporate Defendants (Amazon, Barnes & Noble, Smashwords) in the Common Pleas Court of Miami County, Ohio.
- The case was removed to the United States District Court for the Southern District of Ohio.
- The Corporate Defendants filed a motion for summary judgment, asking the court to dismiss the case against them.
- The district court (a trial court) granted summary judgment in favor of the Corporate Defendants.
- Plaintiffs John and Jane Roe, the appellants, appealed the district court's decision to the United States Court of Appeals for the Sixth Circuit.
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Issue:
Are online self-publishing platforms liable for an author's unauthorized use of a photograph on a book cover for claims of right of publicity and false light, when the plaintiffs' likeness has no independent commercial value and the platforms had no knowledge of the unauthorized use?
Opinions:
Majority - Judge Alan E. Norris
No. The online self-publishing platforms are not liable for the author's unauthorized use of the photograph. Under Ohio law, both statutory and common law right of publicity claims require the plaintiff to demonstrate that their likeness possesses commercial value. The Roes failed to provide any evidence that their image had commercial value, and its use was merely incidental. Furthermore, for the false light claim, the plaintiffs offered no evidence to show that the Corporate Defendants knew or had reason to know that McKenna was using the photograph without permission. The court found that the platforms had reasonably relied on McKenna's contractual representations and warranties that he possessed the legal rights to all submitted content, which negated any finding of knowledge or reckless disregard.
Analysis:
This decision reinforces the high bar for holding intermediary platforms, like online book distributors, liable for content uploaded by third-party users. It insulates these platforms by affirming that they can generally rely on user warranties regarding content rights, placing the burden of proof squarely on plaintiffs. To succeed in a right of publicity claim against such a platform, a plaintiff must not only show the unauthorized use but also that their likeness had pre-existing commercial value and that the platform had actual knowledge of the infringement, making such cases difficult to win.
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