I was on WCPO Channel 9 News last night talking about “A Gronking to Remember.” “Gronking” is an erotic novella that features a housewife’s obsession with the Patriots’ tight end. According to one review, “[s]he’d never given a second thought to football, but now the primal power of the Gronk Spike, and this raw monster of a man, Rob Gronkowski, is all that she wants, and she’ll stop at nothing until the romance of a lifetime is hers!” According to another review, “[t]here are no words for how bad this book is.” But I was not on the news to discuss the book’s literary merits.
I was talking about the lawsuit that the book’s cover has spawned. The book’s cover features an embracing couple in the foreground, with a photo of Gronkowski in the background. The problem is, apparently no one asked permission to use the photo of the couple. It appears the photo was taken off the Internet and plopped on the front of the book. And the couple, who identify themselves as “John and Jane Roe” have filed a complaint seeking damages for the unauthorized use and invasion of privacy.
The lawsuit says the photo “was taken as part of their engagement journey leading toward their wedding.” Suffice it to say, they did not expect a detour on that journey that would lead to the cover of an erotic novel. So they are understandably upset, but does that mean they have a viable lawsuit? Well, let’s think about the claims they DON’T have. There’s no libel claim – the book is clearly fiction, and so no one would understand it to convey any verifiable facts. The couple doesn’t have a copyright claim. That belongs to the person who snapped the photo. And given that the couple’s arms are busy embracing, it doesn’t look like a selfie.
So, that pretty much leaves them with a “right of publicity” claim. Ohio provides a statutory remedy – R.C. 2741.02. Very simply, the statute prohibits anyone from using another person’s “persona” for a commercial purpose without permission. So, the “Roes” would seem to have a pretty good case, right?
Well . . . maybe not. The defendants – Amazon, Apple and Barnes & Noble – have asserted defenses. Chief among them is that the Ohio Statute, at 2741.09(A)(1)(a) exempts “literary works” from its coverage. And a work is literary even if it is the worst book ever. So, does this exception make it a slam dunk for the defendants? Maybe not. The point of the exception, I think, is to avoid giving famous people a veto power over writings about them. Absent that exception, celebrities, politicians, sports figures, etc. could limit what’s written about them to puff pieces.
But given that the photo is simply used as cover art, and the Roes are in no way mentioned in the book, does the exception apply? Aren’t they simply used to draw attention to the cover, so people may buy the book? And doesn’t that sound like a commercial use?
Of course those questions lead to a whole separate defense – that even if the statute applies, the Roes’ persona has no commercial value. It’s not like Heidi Klum is the book’s cover girl. In that case, less evolved men than me may be drawn to the book and buy it in hopes of some additional photos/descriptions of the supermodel. The Roes presumably don’t have that drawing power. And their anonymity may work to the defendants’ benefit.
It may seem a little counter intuitive that the Roes have no remedy. But that may be the result. And they may feel gronked indeed before this is all over.