A Gronking To Remember Is Immortalized In Lawsuit Against Apple/Amazon/Author

from the gronk-gronk-gronk dept

Turns out I owe the NFL an apology. Yes, at the beginning of the year, we discussed how an erotic novel that includes Patriots tight-end (heh) Rob Gronkowski had been taken off the Amazon eBook store, with heavy speculation that it was due to the cover imagery.

Much of that speculation, including my own, focused on the fact that a portion of the Patriots trademarked uniforms, as well as a commemorative team patch, appeared on the cover and wouldn’t it just be so NFL of the league to get the book taken down over the images being used. Turns out that wasn’t the case. A lawsuit filed by two anonymous folks from Ohio likely had it removed and have followed that up with a lawsuit against the author, Amazon, and Apple over the use of their images on the cover. Yes, I’m talking about the two people appearing in the foreground. Those are apparently two people from Ohio who had no idea that an engagement photo of them was being used on the cover of a novella about a housewife banging Gronk.

“The cover of the book contains a photograph of the Plaintiffs which was taken as part of their engagement journey leading toward their wedding,” states the complaint. “The photograph was appropriated by the Defendants for commercial gain without the permission of the Plaintiffs nor with the permission of any lawful copyright holder.”

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.

And the inclusion of the service providers is where this lawsuit gets fun, because Amazon has already replied asserting section 230 protections, and I can’t imagine that Apple and Barnes & Noble will be terribly far behind them in doing the same. Including the companies in the suit would obviously be advantageous from a monetary award standpoint, but that would rely on those companies being considered publishers of A Gronking To Remember. Are they?

No, I don’t think so. In the context of books such as this, those companies do two things: they assist authors in self-publishing and they provide a platform where self-published works can be purchased. Neither of those actions are consistent with what a book-publisher does and have more in common with websites that allow readers to publish their own comments, which obviously falls under section 230 protections. The platform-providers, or service providers, didn’t choose the cover images or create them, so I’m not sure where their culpability would lie. The inclusion of the service providers sounds like an attempt at a money-grab.

In any case, it looks like A Gronking To Remember will be remembered at the very least in court documents.

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Companies: amazon, apple

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Comments on “A Gronking To Remember Is Immortalized In Lawsuit Against Apple/Amazon/Author”

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jakerome (profile) says:

Seems legit

Fairly good case. Even if the photographer owns the copyright (probable) and licensed it for use (highly doubtful), I think there’s about a nil chance that the couple signed a release broad enough to include featuring it on the cover of a book, e or otherwise.

But I reckon Amazon et. al., are on pretty firm ground due to Section 230. The author? Not so much.

Tanner Andrews (profile) says:

Not Certain to Help Sales

I imagine that this book will sell tonnes more copies as a result!

Not so sure of that. If it is removed from the market it will be hard for the author to sell many copies. I have to think that someone screwed up pretty badly to grab someone’s engagement/wedding pic and not clear the rights.

Version 2, with a properly licensed photo, may get less publicity.

DB (profile) says:

Hmmm, I don’t think that the case against Apple, Amazon and B&N is quite so simply dismissed.

This book is “self-published”, which really means that it is being sold anonymously. Effectively these companies are the publishers, the only identified business entities. They are promoting the book, and collecting money from the sale.

They have a good chance of being dismissed from the case as it progresses and the facts are established, but at this point they are the proper parties to sue.

bob (profile) says:

or perhaps

or perhaps the people signed a general waiver and the photographer ended up putting the pic up on a stock photo site because it’s covered in the wording even if not called out implicitly. meaning that this may be a properly licensed photo etc.
I hope TD follows up when this gets resolved because I’m curious as to what the case here happens to be.

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