CINCINNATI (CN) – The Sixth Circuit affirmed a judgment Tuesday against an Ohio couple that sued Amazon, Apple and Barnes and Noble for distributing an unexpected erotic-fiction hit that used their engagement picture and told the story of a married woman’s romantic interest in New England Patriots tight end Rob Gronkowski.
“A Gronking to Remember” might have seemed destined for obscurity when author Greg McKenna published it in late 2014 using the pseudonym Lacey Noonan on several self-publishing platforms offered by Amazon and Barnes and Noble.
McKenna indeed appeared to have low expectations. Attesting to the do-it-yourself nature of e-book publishing, he had downloaded an engagement photo of the couple he found on a wedding photographer’s website for the book, an erotic satire that followed a troubled married couple whose female side is obsessed with Gronkowski.
But McKenna’s book soon garnered the kind of attention that most self-published authors dream of when the Boston Globe picked up on the book and it went viral. The e-book got a mention in the run-up to coverage for the 2015 Super Bowl and appeared on “The Tonight Show.” After the Patriots won that Super Bowl, Gronkowski performed a dramatic reading on “Jimmy Kimmel Live!”
While the national attention must have delighted McKenna, he probably wasn’t banking on the legal objections that would follow.
First, there were rumors that the National Football League was challenging the use of Gronkowski’s image on the cover. Amazon pulled the book but it emerged again when McKenna published it with a new cover, replacing a photo of Gronkowski with an illustration and using a photo of different couple.
Next, the original Ohio couple filed a right of publicity claim in court, alleging that McKenna and the booksellers had used their image without permission.
The trial court in Dayton denied the couple’s motion for summary judgment and ruled for the book’s distributors – Amazon, Barnes & Nobel Booksellers, Smashwords and Apple – without a trial.
On Tuesday, Sixth Circuit affirmed the ruling in favor of the corporate giants in an unpublished opinion.
U.S. District Judge Thomas Rose had found that the distributor’s self-publishing activities were protected under the First Amendment because the distributors had no direct knowledge of the content of McKenna’s book.
While the Sixth Circuit was not entirely sold on Rose’s findings under the First Amendment, it found that the couple had failed to make clear to the court that their likeness was of commercial value under Ohio law.
“The mere incidental use of a person’s name or likeness is not actionable in an appropriation claim,” U.S. Circuit Judge Alan Norris wrote for the panel.
The couple’s allegation of false claims also deflated like the footballs used in the run-up to the Patriots’ 2015 Super Bowl victory.
The Sixth Circuit panel found that the couple had not alleged facts that would support a finding that the corporations were liable for the work, and did not make clear that the corporations knew McKenna had used their photo 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,” Norris wrote in the six-page ruling. “Therefore, a jury could not reasonably find liability, and the district court’s grant of summary judgment was proper.”
U.S. Circuit Judges Richard Suhrheinrich and Richard Griffin joined in the unanimous decision.
McKenna released another book in the series, “A Gronking to Remember 2: Chad Goes Deep in the Neutral Zone” just months after the first. He has also written two books featuring a sex robot modeled after former President Barack Obama.