In a brief, unpublished opinion, the Sixth Circuit affirmed the dismissal of right of publicity and privacy claims against a host of self-publishing platforms and service providers for distributing an erotic (and purported “less than tasteful”) book whose cover contained an unauthorized copy of the plaintiffs’ engagement photo because the plaintiffs failed to plead more than an “incidental” use of the photo by the service providers. (Roe v., No. 16-3987 (6th Cir. Nov. 21, 2017) (unpublished)).

This dispute initially raised our interest because it raised the larger issues of how to define a “publisher” and “distributor” in the modern e-commerce environment and to what extent an ebook platform or print-on-demand service could be protected for distributing third-party content by the immunity provided by Section 230 of the Communications Decency Act (“CDA Section 230”).  While we anticipated that such issues would get a full examination on appeal, the Sixth Circuit sidestepped these novel issues and decided the case on the merits of the privacy claims. 

As more full outlined in our prior post on the lower court’s opinion, the dispute began with the unauthorized publication of the plaintiffs’ engagement photograph on the cover of an erotic book authored by Greg McKenna (under a pseudonym).  The book was uploaded using several online self-publishing platforms and offered for sale on the major ebook sites (as well as being offered in paperback form via print-on-demand).  The plaintiffs subsequently brought suit against the author McKenna and the self-publishing vendors used by the author (i.e., Amazon’s Kindle Digital Publishing, Barnes & Noble Nook Press and Smashwords), asserting right of publicity and invasion of privacy claims.

Liability against the self-publishing vendors was based on the theory that they “published” the work.  The vendors sought summary judgment asserting that they were not publishers of the book but merely allowed the author to use their systems to distribute it and were otherwise protected from liability for third-party content by CDA Section 230.  Siding with the defendants, the lower court dismissed the claims against the self-publishing vendors, finding that their services were not “publishing,” rather they were distributors protected by the First Amendment and could not be liable for the claims allegedly committed using their technology.

In its concise opinion, the Sixth Circuit affirmed the dismissal, but not on the grounds of the publisher vs. distributor distinction or on CDA immunity.  Indeed, the appeals court failed to mention the CDA and “questioned” the district court’s analysis of the First Amendment issue, instead deciding the case with a dry analysis of the plaintiffs’ privacy claims, finding them lacking.  In finding no viable right of publicity claim, the court ruled, among other things, that the association of the plaintiffs’ image and the service providers was at best “incidental.”  As to the invasion of privacy claims, the court found no evidence that the providers knew or had reason to know that the author was using their photograph without permission.  As the court pointed out, the self-publishing providers, in one form or another, required the author to agree to their terms of service and warrant that he had all the necessary legal rights to his book, including the cover, and that the book did not violate any rights of privacy of any person or entity.

While the lower court had taken a deeper dive into the potential liabilities and immunities for print-on-demand and online self-publishing platforms in the face of defamation or privacy claims – an issue that has not been greatly interpreted – the appeals court skirted these important technology law issues.  Still, the opinion should serve as a reminder for providers and platforms that distribute user-generated content to reexamine user agreements and terms of service to ensure that certain author representations about the non-infringing and non-libelous nature of uploaded content are clearly worded and that electronic contracting best practices are followed to ensure enforceability.