Home » Copyright/Intellectual Property » Couple featured on Gronkowski ‘erotica’ book lose lawsuit

Couple featured on Gronkowski ‘erotica’ book lose lawsuit

24 November 2017

From The New York Post:

To football fans, he is the “Gronk.” To a couple unwittingly enmeshed in a less-than-literary work of fiction featuring him, it was an invasion of their privacy. To a panel of judges, it was a case dismissed.

A federal appeals court this week turned away a lawsuit by an unnamed married couple who claimed their likeness was improperly used for the self-published piece of erotic fiction — about a woman’s infatuation with New England Patriots player Rob Gronkowski.

The digitally published “A Gronking to Remember” — distributed by Kindle, Smashwords, CreateSpace and NOOK Press — was billed as the first installment in the “Rob Gronkowski erotica series.”

For the cover art, author Greg McKenna downloaded a photograph he found on the internet of an Ohio couple taken at their engagement and put it online without their permission or compensation. The couple — named in court papers as Jane and John Roe — sued, saying the work was “less than tasteful and is offensive.”

. . . .

But the cover was not necessarily illegal. The 6th Circuit US Court of Appeals found the companies had no input in the creation or design of the book’s cover page. Amazon and Barnes & Noble were among the companies providing the online publishing services.

The court found the Roes failed to prove the companies were liable over any photo rights issues.

Link to the rest at The New York Post and thanks to Noreen for the tip.

Copyright/Intellectual Property

15 Comments to “Couple featured on Gronkowski ‘erotica’ book lose lawsuit”

  1. The most important sentence from that article:
    “The Roes’ lawsuit against the self-published author still continues.”

    The actual opinion (http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0644n-06.pdf) says that the publishers did enough to shield themselves from liability:
    “… plaintiffs have offered no summary judgment evidence tending to show that the Corporate Defendants knew or had reason to know that McKenna was using their photograph without permission. Plaintiffs contend that the Corporate Defendants should have inquired as to whether McKenna owned the rights to the photo. But they did. In one form or another, each of the Corporate Defendants required that McKenna represent and warrant that his book did not violate the legal rights of others.”

  2. I had three reactions to the article…

    First, where was the author in the suit? Then I saw the final line: “The Roes’ lawsuit against the self-published author still continues.” Because in almost all of the online publishing material, the requirement is you own the rights to the photos you use. Kindle and Smashwords would have no way to know, it’s all on the author.

    Second, once the companies were notified that the picture was used without consent, what did they do? Did they take it down? Because continuing to show it after notification seems problematic to me. Or maybe the author removed it.

    Third, before they took it down, they were using the cover to advertise the book. Ergo the cover sold the book which generated some sales (presumably). Ergo revenue. Yet judge says ““The Roes do not argue, and there is no summary judgment evidence in the record to suggest, that there was any commercial value in associating their likeness with the Corporate Defendants.” If there was no commercial value, why do they show covers?

    I don’t disagree with the verdict, more the plaintiffs argument I think. Someone get them a better lawyer. Why WOULDN’T you argue that?

    • 1) The author may have had little or no money so they went for deeper pockets, pockets not at fault.

      2) It doesn’t say if they took them down or just pasted the complaint on to the author. Or maybe they waited for a judge to decide, could you imagine the fun the trolls and haters could have if all it took was an unknown third party claim to have any book/cover removed? (And it sounds like a third party took the picture in the first place – so not theirs to claim.)

      3) Back to 1, they may have been suing the wrong people (and the cover may have been lackluster enough to not sell well.)


      Just another reason to have an artist whip something up or play with one of the 3D software packages, made up people don’t (can’t) sue or be offended by what you have them doing …

    • Oh, and maybe the ‘better lawyers’ wouldn’t take the case because they already knew it wouldn’t be worth the time.

    • This started quite a while ago, so I could be wrong – but as I remember the original story on PV, it was taken down on notice.

      On the revenues that the companies made from their cut – this is an appeals court. Those courts (in the main) only consider whether the law was followed in the trial court, and was appropriately applied/interpreted by the trial judge or jury, given the evidence and arguments during the original trial (or motion for summary judgement, in this case).

      The OP is not very good – I suggest reading the actual decision: https://www.leagle.com/decision/infco20171121155.

      Much better explanation of the original court’s reasoning.

  3. The author probably has no money.

    • If he does, he won’t after he gets the legal bill from Amazon, B&N, and Kobo. His contracts with them contain indemnification clauses.

      Where is the photographer? Absent an assignment, he owns the copyright, not the couple; he has standing to sue, they don’t.

      A quote from A Gronking to Remember: It jettisoned jiggling ribbons of electric jelly through my body. Somebody please buy Mr McKenna a dictionary for Christmas. And Strunk and White, The Elements of Style.

      • Heh, if it’s that bad you have to wonder if no one would have even noticed the cover or the book if they’d just kept their mouths shut. 😉

    • Yep. If you are going to sue somebody for money, sue somebody with money.

  4. Last line of the article:

    “The Roes’ lawsuit against the self-published author still continues.”

  5. The suit against the author is separate from this one and continues.

  6. photog might or might not own image

    depends on who snapped shutter, with whose camera, what the agreement was, being a photog or not. A waiter, a teen passing by, a child of the family, the drunk uncle/aunt…

    Nowadays seems more and more rare that photogs put their work online without watermarks. There are indeed trolling lawyer groups who do nothing except look for illegal use of photographer’s photos, and put the spikes to the user. I think the attys work on commission

  7. You guys are a sophisticated lot, but for any newbies who’re wondering, it’s my understanding that in order to use a photo of recognizable people for commercial purposes, one must a) license the copyright photo, such as from a stock site, or b) have taken the photo yourself, and c) make sure there’s a signed model release.

    I’m not a lawyer. Just a paranoid author.

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