Amazon Defeats Publicity Rights Lawsuit Over ‘A Gronking To Remember’ Book Cover (Forbes Cross-Post)

4 04 2016

Eric Goldman

Greg McKenna writes as a woman using the pen name Lacey Noonan. In 2014, McKenna wrote the book “A Gronking to Remember,” an erotic “fan fiction” book about New England Patriots tight end Rob Gronkowski. He self-published the book digitally via Nook, Kindle and iBooks and in paperback form. For reasons that are beyond my comprehension, this book became a sensation, including mentions on The Tonight Show and Jimmy Kimmel Live and references at Super Bowl XLIX press day. It even spawned a parody Funny or Die video featuring Gronkowski himself.

It’s unclear how McKenna obtained the photo in question (the complaint is curiously silent about that), but the plaintiffs allege the book cover included an engagement photo of them without their permission. This cover got lots of exposure during the media frenzy, allegedly leading to “ridicule and embarrassment.” The plaintiffs sued McKenna and his self-publication vendors, including Amazon, Smashwords and Barnes & Noble, for publicity rights and privacy violations.

The court dismisses the self-publication vendors from the lawsuit because, legally, they functioned more like book “distributors” than “publishers”:

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. 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.

customer photocopying once the machine is shipped. Similarly, self-publication tools usually profit from each book sale, whereas photocopy machine manufacturers typically don’t get any further revenue after initially selling the machine.


Case citation: Roe v., 2016 WL 1028265 (S.D. Ohio March 15, 2016). The complaint. Amazon’s motion for summary judgment.


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