Roe v. Amazon.com

• Decision Date: 15 March 2016
• Docket Number: Case No. 3:15-cv-111
• Citation: 118 U.S.P.Q.2d 1070,170 F.Supp.3d 1028
• Parties: John and Jane Roe, Plaintiffs, v. Amazon.com, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

170 F.Supp.3d 1028

118 U.S.P.Q.2d 1070

John and Jane Roe, Plaintiffs,

v.Amazon.com, et al., Defendants.

Case No. 3:15-cv-111

United States District Court, S.D. Ohio, Western Division, at Dayton .

Signed March 15, 2016

David Eugene Beitzel, Beitzel Law Office, Shelee Busch, Attorney at Law, Troy, OH, for Plaintiff.

John F. Marsh, Hahn Loeser & Parks LLP, Aneca E. Lasley, Squire Sanders (U.S.) LLP, Maribeth Meluch, Isaac Wiles Burkholder & Teetor, LLC, Columbus, OH, Deepak Gupta, Erik Olson, Julia F. Kropp, Farella Braun & Martel LLP, San Francisco, CA, Elizabeth Brannen, Peter K. Stris, Victor O'Connell, Los Angeles, CA, for Defendants.

ENTRY AND ORDER DENYING DEFENDANT JANE DOE'S MOTION FOR JUDGMENT ON THE PLEADINGS, DOC. 45, AND GRANTING ALL OTHER DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT. DOCS. 23, 24, 32, 37, AND 42.

THOMAS M. ROSE

, UNITED STATES DISTRICT JUDGE

Pending before the Court are a variety of motions by all Defendants. Defendant Jane Doe¹ would have the Court grant a Motion for Judgment on the Pleadings. Doc. 45. Defendants Amazon.com, Barnes & Noble Inc., and Smashwords Inc., who comprise all other remaining defendants, and who will be referred to as the “Corporate Defendants,” all seek summary judgment.² Docs. 23, 32 (BN), 24, 37 (Amazon.com), 42 (Smashwords). Amazon.com and Barnes & Noble Inc. moved for summary judgment against the original complaint, doc. 37 & 24, and renewed their motions when Plaintiffs John and Jane Roe amended their complaint to include Smashwords, 37, 32 & 42. The instant action stems from publication of Plaintiffs' engagement photograph on the cover of an erotic book authored by Jane Doe. Plaintiffs assert three claims: wrongful appropriation of their persona for commercial purposes as made actionable under Ohio Revised Core § 2741, “invasion of privacy as that tort is recognized in the State of Ohio,” and “tort liability for violation of Restatement (Second) of Torts 652

.” Liability against Jane Doe is sought on the theory that she authored the work in question. Liability is sought against all other defendants on the theory that they published Jane Doe's work.

I. Background

Plaintiffs allege that sometime in 2014 Defendant Jane Doe wrote a book entitled A Gronking to Remember and had it published by Defendants, Amazon.com, Inc., Barnes & Noble, Inc., Apple, Inc. and Smashwords³ (the “Corporate Defendants”). The Corporate Defendants offered the book for sale on their websites in both digital formats (e.g. Nook, Kindle, iBooks) as well as in paperback.

The cover of the book contains a photograph of Plaintiffs taken during their engagement prior to their wedding. Plaintiffs allege the photograph was appropriated by the Defendants for commercial gain with neither the permission of Plaintiffs nor the permission of any lawful copyright holder. Plaintiffs were not compensated for the use of their image on the cover of these books. Plaintiffs allege they did not place the photograph on the internet for expropriation as the color photograph on the cover of this book.

A Gronking to Remember , is alleged to be less than tasteful and to be offensive. Plaintiffs allege the use of their image has held them up to ridicule and embarrassment. Their connection to the book was aggravated when the book, with Plaintiffs' image on the cover, was shown in nationwide media. The book was used in jokes on The Tonight Show and Jimmy Kimmel Live as well as being displayed and read before the press at media day for the XLIX Super Bowl.

Plaintiffs filed suit on February 24, 2015 in the Miami County, Ohio Court of Common Pleas naming Amazon.com, Barnes & Noble Inc., Apple Inc., and Jane Doe as defendants. Doc. 1. Defendants removed the matter to this Court on March 27, 2015. Doc. 1. Apple, Barnes & Noble and Amazon.com filed motions for summary judgment. Docs. 20, 23, 24. On July 7, 2015, Plaintiffs amended their complaint, substituting Smashwords Inc., for Apple Inc. Doc. 28. The moving parties who remained renewed their motions for summary judgment, with Smashwords adding its own. Docs. 32, 37, 39, 42. Jane Doe added a motion for Judgment on the Pleadings. Doc. 45. All pending motions have now been responded to and replies filed in their support, rendering them ripe for decision.

Plaintiffs assert claims for wrongful appropriation of their persona for commercial purposes as made actionable under Ohio Revised Code § 2741, “invasion of privacy as that tort is recognized in the State of Ohio,” and “tort liability for violation of Restatement (Second) of Torts 652

.” Liability against Jane Doe is sought on the theory that she authored the work in question. Liability is sought against all other defendants on the theory that they knowingly or recklessly published Jane Doe's work.

Plaintiffs seek the recovery of actual damages, including any profits derived from and attributable to the allegedly unauthorized use. In the alternative, Plaintiffs claim entitlement to statutory damages in an amount of $10,000.00. Plaintiffs also seek an accounting from each of the Defendants in order to elect remedies. Moreover, Plaintiffs seek the recovery of punitive damages. and attorney fees, courts costs and reasonable expenses associated with the pursuit of this civil action. Alleging Defendants knew or should have known that they did not have the right to use the Plaintiffs' persona for commercial purposes, Plaintiffs seek the recovery of treble damages. The Court will first rule upon Jane Doe's Motion for judgment on the Pleadings.

II. Standard for Motion on the Pleadings

Courts apply the same analysis to motions for judgment on the pleadings under Rule 12(c) as they apply to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6)

. See Warrior Sports, Inc. v. Nat'l Collegiate Athletic Ass'n , 623 F.3d 281, 284 (6th Cir.2010). “For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget , 510 F.3d 577, 582 (6th Cir.2007) (internal citation and quotation marks omitted). However, the court need not accept as true legal conclusions or unwarranted factual inferences. Id. (citing Mixon v. Ohio , 193 F.3d 389, 400 (6th Cir.1999) ).

To withstand a Rule 12(c)

motion for judgment on the pleadings, “a complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co. , 508 F.3d 327, 336 (6th Cir.2007). “The factual allegations in the complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead ‘sufficient factual matter’ to render the legal claim plausible, i.e. , more than merely possible.” Fritz v. Charter Twp. of Comstock , 592 F.3d 718, 722 (6th Cir.2010) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

A “legal conclusion couched as a factual allegation” need not be accepted as true, nor are recitations of the elements of a cause of action sufficient. Hensley Mfg. v. ProPride, Inc. , 579 F.3d 603, 609 (6th Cir.2009)

(quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)

). In considering a motion for judgment on the pleadings, a court considers the pleadings, which consist of the complaint, the answer, and any written instruments attached as exhibits. See Fed. R. Civ. P. 12(c) ; Fed. R. Civ. P. 7(a) (defining “pleadings” to include both the complaint and the answer); Fed. R. Civ. P. 10(c) (stating that “[a] copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes”); Northern Ind. Gun & Outdoor Shows, Inc. v. City of South Bend , 163 F.3d 449, 452 (7th Cir.1998). While the allegations in the complaint are the primary focus in assessing a Rule 12(c) motion, “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint[ ] also may be taken into account.” Barany–Snyder v. Weiner , 539 F.3d 327, 332 (6th Cir.2008) (quoting Amini v. Oberlin Coll. , 259 F.3d 493, 502 (6th Cir.2001) ). In addition, a court may consider exhibits attached to a motion for judgment on the pleadings “so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. Nat'l Collegiate Athletic Ass'n , 528 F.3d 426, 430 (6th Cir.2008).

Because judgment is sought on claims brought under Ohio law, this Court must apply the law of Ohio, as interpreted by the Supreme Court of Ohio. Northland Ins. Co. v. Guardsman Prods. Inc. , 141 F.3d 612, 617 (6th Cir.1998)

. Specifically, this Court must apply the substantive law of Ohio “ ‘in accordance with the then-controlling decision of the highest court of the State.’ ” Imperial Hotels Corp. v. Dore , 257 F.3d 615, 620 (6th Cir.2001) (quoting Pedigo v. UNUM Life Ins. Co. , 145 F.3d 804, 808 (6th Cir.1998) ). Also, to the extent that the highest court in Ohio has not addressed the issue presented, this Court must anticipate how Ohio's highest court would rule. Id. (quoting Bailey Farms, Inc. v. NOR

–

AM Chem. Co. , 27 F.3d 188, 191 (6th Cir.1994) ).

III. Analysis of Motion for Motion for Judgment on the Pleadings

Doe first seeks judgment on Roe's claim for commercial use of persona. Under Ohio law a person may use an individual's persona for a commercial purpose during the individual's lifetime if the person first obtains written consent to use the individual's persona from various statutorily prescribed persons, including inter alia , the individual whose right of publicity is at issue. See Ohio Rev. Code § 2741.02(B)

. Persona is defined as an individual's, “name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value.” Ohio Rev....