Hollywood Docket: 'Gronking to Remember' Ruling; ABC Escapes Death on Television Lawsuit

Some developments in entertainment and media law news, including the latest concerning the importation of infringing digital files.
ABC/Randy Holmes

Amazon.com and Barnes & Noble have escaped a lawsuit over A Gronking to Remember, the smash hit erotic novella from pseudonymous author Lacey Noonan that played on the way that New England Patriots tight end Rob Gronkowski emphatically spiked a football whenever he scored a touchdown.

The lawsuit came about when the author — who turned out to be a guy by the name of Greg McKenna — used a random image of a couple as part of the cover of his book. The plaintiffs — captioned as "John Roe" and "Jane Roe" — asserted publicity and privacy violations under Ohio law. In a summary judgment motion, Amazon argued that it provided a platform to self-publish the book, but wasn't responsible for the content.

Ohio federal judge Thomas Rose writes that the First Amendment protects the right to distribute books and that bookstores and other distributors generally have no duty to monitor material they distribute. Of course, this book was distributed digitally, and noting the falling cost to distribute, he muses, "One can imagine a social benefit in requiring the modicum of review required to assure that no rights are violated in production."

But he's not willing to make such a stand at the moment.

"For now, this Court will apply the old standards to the new technology, treating the Corporate Defendants’ process as if it were next logical step after the photocopier," he writes. "Just as Xerox would not be considered a publisher and held responsible for an invasion of privacy tort carried out with a photocopier, Corporate Defendants will not be liable as publishers for the tort allegedly committed using their technology."

Here's the full opinion.

In other entertainment and media law news:

— The filming of a man's death on ABC's docuseries NY Med was the subject of ruling by the New York Court of Appeals on Thursday. With permission from The New York and Presbyterian Hospital, ABC was allowed to tape medical trauma professionals attending to patients in the emergency room. Sixteen months after her husband died, Anita Chanko watched the show and heard her late husband asking about her. It was the first time she was aware there was a recording of his death. The appeals court affirms a decision to dismiss a claim of intentional infliction of emotional distress against ABC — finding actions "while offensive ... [are] not so atrocious and utterly intolerable" — but is allowing the widow to pursue the hospital for breaching physician-patient confidentiality. The appeals court opinion (read here) also states, "To the extent plaintiffs belatedly attempt to argue that ABC aided and abetted those defendants in breaching confidentiality, that argument is not properly before us."

— A judge is allowing Alstory Simon to pursue a $40 million lawsuit against Northwestern University and former journalism professor David Protess over alleged falsification of evidence that led to his wrongful conviction and 15-year incarceration for a double murder. Protess' efforts in the 1990s to free Anthony Porter and others became both national news and the inspiration behind a made-for-TV movie airing on CBS. But questions about investigative practices have come up. Just one allegation: A private investigator working with Protess posed as producer Jerry Bruckheimer in a witness interview to support a promise that this witness would reap huge financial rewards for sharing his story. The judge finds Simon's allegations plausible, writing, "It is reasonable to think that Defendants, who had garnered tremendous prestige (e.g., book deals, a made-for-TV movie, sizable donations, etc.) from their involvement in two high-profile wrongful conviction cases, would be eager to continue their streak of successes."

— The United States Court of Appeals for the Federal Circuit won't rehear a decision that determined that the International Trade Commission lacked the authority to stop the importation of digital data. The opinion last November was a blow to the Motion Picture Association of America hoping to have the ITC take strong action against copyright infringement in the digital arena. Several circuit judges concurred with the original opinion and addressed some new points raised in this novel dispute involving 3D printed invisible braces while in a dissent, judge Pauline Newman wrote, "The amici curiae point out the consequences of the court’s change of law, for infringing imports of books, motion pictures and other products subject to transmission in digital form. The disruption that this ruling is already causing warrants en banc attention." A petition to the U.S. Supreme Court could be next.

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