Almeida v. Amazon.Com, Inc.
| Decision Date | 18 July 2006 |
| Docket Number | No. 04-15561.,No. 04-15341.,04-15341.,04-15561. |
| Citation | 456 F.3d 1316 |
| Parties | Thais Cardoso ALMEIDA, Plaintiff-Appellant, v. AMAZON.COM, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Craig P. Kalil, Hendrik G. Milne, Carlos F. Osorio, Aballi, Milne, Kalil & Escagedo, P.A., Miami, FL, for Almeida.
Vanessa Soriano Power, Stoel Rie, LLP, Seattle, WA, John H. Pelzer, Ruden, McClosky, Smith, Schuster & Russell, P.A., Ft. Lauderdale, FL, for Defendant-Appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before TJOFLAT and HULL, Circuit Judges, and RESTANI*, Judge.
Thais Cardoso Almeida brought this action against Amazon.com, Inc. ("Amazon") for displaying her image on its websites in furtherance of its sale of the book Anjos Proibidos. Almeida asserted claims against Amazon pursuant to Fla. Stat. § 540.08 (West 2006), for civil theft pursuant to Fla. Stat. § 772.11 (West 2006), and under Florida's common law doctrine of invasion of privacy. The district court granted summary judgment in favor of Amazon as to all of Almeida's claims. The district court held that Almeida's right of publicity claim under § 540.08 and common law is preempted by the Communications Decency Act of 1996 ("CDA"), 47 U.S.C. § 230 (2000), and is otherwise unavailable under Florida's statutory first-sale doctrine. As to Almeida's civil theft claim, the district court held that Almeida failed to establish Amazon's intent to misappropriate Almeida's image. We affirm the district court's grant of summary judgment, although with respect to Almeida's right of publicity claim, we do so on different grounds.
This case involves Amazon.com, an internet retailer, and its display of book cover images in furtherance of its internet book sales. At issue here is a photograph of the plaintiff Almeida taken when she was ten years old and displayed on the cover and inside the second edition of the photographic book Anjos Proibidos, or "Forbidden Angels." In essence, Almeida claims that Amazon should not display her image to promote the sale of Anjos Proibidos because she did not consent and did not receive just compensation for the use of her image.
In 1991, fashion photographer Fabio Cabral requested permission from Almeida's mother to photograph her daughter for an artistic photo exhibit, and she signed an authorization form that provided:
The legal representative for the photographed minor both listed below authorizes free from restrictions the use of the photographic image produced by the photographer, Fabio G.M. Cabral, in an exhibition entitled "18 Girls Under 18 Years" and in the photographic book "PORTPHOLICS BOOK" No. 3 of the same title as the exhibition for use during the vernissage and launch at the "COLLECTORS" photographic gallery. The authorization extends to the invitation, the poster and printed promotional material for the exhibition and launch of the book.
Almeida's image was displayed at Cabral's two-day exhibit, at which the first edition of Anjos Proibidos was offered for sale, displaying black and white photographs of girls between the ages of ten and seventeen, including a photograph of Almeida inside the book. Two hundred copies of the book were sold before the authorities in Sao Paulo seized the remaining copies. Cabral and the book's publisher, Itamarati Grafica, were prosecuted for producing a work of child pornography, and both were acquitted.
In 2000, Ophelia Editions published a second edition of Anjos Proibidos, which is the same in all respects, except that Almeida's picture is now on the book's cover, there is a new introduction, and a few new pictures of other girls appear inside the book. The second edition was offered for sale on Amazon's website.
Generally, Amazon is recognized as a leading internet retailer with a particular focus on online book sales. It offers its customers a searchable product database, order placement capability, and delivery services through a world-wide distribution system. In addition, Amazon enters agreements with web operators to link potential customers to Amazon's websites in exchange for a percentage of the sales price. It is customary business practice for Amazon to provide a product detail page that displays the cover of each book offered for sale, as well as text describing the book.
In 2002, Almeida discovered that her picture was being displayed on Amazon.com websites in furtherance of the sale of the second edition of Anjos Proibidos. Amazon's product detail page displayed the second edition cover photograph of Almeida and a quote attributed to a ten-year old Almeida:
On March 6, 2003, Almeida's attorney sent a letter to Amazon requesting statutory damages, pursuant to Fla. Stat. § 540.08, for its unauthorized use of her image. On March 11, 2003, Amazon responded by letter saying that it would voluntarily remove the listing for Anjos Proibidos from its websites. The listing with Almeida's image was in fact removed promptly from Amazon's websites. Moreover, there is no indication that Amazon had knowledge or should have had knowledge that the book cover displayed an image that the author and publisher were not authorized to use. On July 7, 2003, Almeida's attorney sent a civil theft demand letter to Amazon pursuant to Fla. Stat. § 772.11, to which Amazon apparently did not respond.
On November 14, 2003, Almeida filed suit in Miami-Dade County, Florida asserting claims under: (1) the right of publicity statute, Fla. Stat. § 540.08; (2) the civil theft statute, Fla. Stat. § 772.11; and (3) the Florida common law invasion of privacy doctrine. On January 2, 2004, Amazon invoked diversity jurisdiction and removed the case to federal district court. On July 30, 2004, the district court granted Amazon's motion for summary judgment as to all of Almeida's claims.
The district court held that Almeida may not recover under section 540.08 because the subject matter of her claim has been preempted by the CDA. Assuming arguendo that the CDA does not preempt the subject matter of Almeida's section 540.08 claim, the district court concluded that Almeida consented to Cabral's use of her image, and, therefore, section 540.08(3)(b) bars application of the statute. Further, the district court dismissed Amazon's invasion of privacy claim on the same basis as the statutory right of publicity claim.1 As to Almeida's civil theft claim, the district court determined that Almeida failed to establish Amazon's felonious intent by clear and convincing evidence. Finally, the district court awarded Amazon attorney's fees based on Almeida's civil theft claim.
On appeal to this court, Almeida challenges the district court's decision as to the CDA on a number of grounds. First, Almeida argues that the district court erred by raising the CDA sua sponte when Amazon was required to raise the CDA as an affirmative defense. Second, Almeida asserts that the right of publicity is an intellectual property right and the CDA does not apply to causes of action predicated on "any law pertaining to intellectual property." Third, Almeida contends that the CDA does not immunize Amazon because it is not an "information content provider" as that term is defined by the CDA.
As to the merits of Almeida's right of publicity claim, Almeida argues that she never consented to the use of her image in the second edition of Anjos Proibidos, so the first-sale doctrine does not apply. Finally, with respect to the district court's civil theft determination, Almeida argues that the district court erred by failing to allow for meaningful discovery as to Amazon's intent, by awarding attorney's fees based on finding that the claim lacked a "substantial basis in law or in fact," and by entering a fee award based on its in camera review without an explanation as to the amount of fees.
First, we address the district court's conclusion that the CDA preempts the subject matter of Almeida's right of publicity claim. Subsection 230(c) of the CDA provides:
(c) Protection for "Good Samaritan" blocking and screening of offensive material
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.
No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
47 U.S.C. § 230(c).2 The CDA preempts state law that is contrary to this subsection. See 47 U.S.C. § 230(e)(3) ()
The majority of federal circuits have interpreted the CDA to establish broad "federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).3 In this case, the district court adopted this approach, but even this broad statutory immunity does not apply without limitation. See 47 U.S.C. § 230(e)(1) (); 47 U.S.C. § 230(e)(2) (...
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