'A Gronking to Remember' Becomes Memorable Lawsuit Against Amazon, Apple

Rob Gronkowski Reads Erotic Fan Fiction Jimmy Kimmel Still - H 2015
ABC/Randy Holmes

Rob Gronkowski Reads Erotic Fan Fiction Jimmy Kimmel Still - H 2015

A self-published erotic novella entitled A Gronking to Remember could be on its way to highlighting the dangers of stripping out the middle-men.

Last year, pseudonymous author Lacey Noonan hit the big time by cleverly picking a title that alluded to the way that New England Patriots tight end Rob Gronkowski emphatically spiked a football whenever he scored a touchdown. The title was undoubtedly memorable — so much so that it got heated online attention and soon, mentions on The Tonight Show, Jimmy Kimmel Live! and other television shows.

The book took a detour from the best-seller list, though, when it was suddenly pulled by some online outlets. In noting that Amazon.com had removed the book, The Boston Globe surmised that "someone — perhaps the Patriots or the National Football League — objected to the book jacket, specifically the photo of Gronkowski that features the 'MHK' patch on his uniform. (The team began wearing the patch in 2011 after the death Myra Kraft, wife of Patriots owner Robert Kraft.)"

Guess again.

In fact, the problem with the book might have been something else on the cover, as revealed in a lawsuit (read here) that was filed in Ohio by two anonymous individuals.

"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.

How and why Noonan chose this image for her cover has not yet been explained. The lawsuit doesn't rule out that the couple uploaded the photograph themselves to the Internet, but it says they "did not place the photograph on the internet for expropriation."

The couple featured on the book cover don't like the media attention that ensued.

"The subject matter of the book, A Gronking to Remember, is less than tasteful and is offensive," says the complaint. "The use of the Plaintiffs image has held them up to ridicule and embarrassment. This outrageous connection has been further aggravated when the book, with the Plaintiffs image, has been reproduced in the media nationwide. The book has been shown as a source of ribald humor on The Tonight Show and Jimmy Kimmel Live as well as being displayed and read before the press at media day for the Super Bowl."

The lawsuit was recently removed to a federal court and appears primed to answer the question of whether Section 230 of the Communication Decency Act can shield an e-book service from publicity rights claims. That statute enacted by Congress in 1996 states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, The Hollywood Reporter may not be the "publisher" of anything written in the comment section and a search engine like Google might not be the "publisher" of things that pop up in the search results.

But how about Apple allowing people to "self-publish" stuff through its iBooks store? Or Amazon.com allowing authors to "self-publish" works on Kindle stores? Are Apple and Amazon not "publishers"?

That's what one of the defendants asserts.

In answering the lawsuit (see here) last week, Amazon asserted a Section 230 defense because the plaintiffs "purport to hold Amazon, which is an interactive computer service, as the publisher or speaker of a purportedly infringing image, which was posted by users of the Amazon.com website."

There's some past cases — including one that involves an actress from Star Trek: Deep Space Nine — that examine the issue of whether Section 230 trumps a state-based publicity rights claim. (Here's another.) That will probably be discussed as the case moves forward.

Amazon is also raising other defenses: The cover photo from A Gronking to Remember is mere "incidental use." The couple might have assumed risk by authorizing use (presumably by sharing the photo online). Damages are nonexistent. And so on. However, it's the fight over the meaning of a "publisher" in this day and age that potentially makes the lawsuit really one to remember.