NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0644n.06 No. 16-3987 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOHN ROE; JANE ROE, ) ) Plaintiffs

- Appellants, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE SOUTHERN AMAZON.COM; BARNES & NOBLE ) DISTRICT OF OHIO BOOKSELLERS, INCORPORATED; ) SMASHWORDS, INC., ) OPINION ) Defendants-Appellees, ) ) APPLE INC., et al., ) ) Defendants.

BEFORE: NORRIS, SUHRHEINRICH, and GRIFFIN, Circuit Judges. ALAN E. NORRIS, Circuit Judge. Plaintiffs John and Jane Roe sued an individual author along with Amazon.com, Barnes & Noble Booksellers, Inc., and Smashwords, Inc. (the “Corporate Defendants”) ove r a book that used a picture of th e plaintiffs on the cover without their permission. The plaintiffs now appeal the di strict court’s grant of summary judgment in favor of the Corporate Defendants. For the reasons that follow, we affirm the judgment of the district court.Roe v. Amazon.com No. 16-3987

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I. In December 2014, Greg McKenna 1 authored A Gronking to Remember (“ Gronking ”) and published it under the pseudonym Lacey Noonan. Gronking is a fictional work of erotica and satire featuring “the make-believe exploits of a married woman who b ecomes fascinated with New England Patriots footba ll player Rob Gronkowski.” According to plaintiffs, Gronking “is less than tasteful and is offensive.” To create part of the cover for Gronking , McKenna downloaded a photograph of the plaintiffs embracing he found on the internet. This photograph was taken to commemorate the plaintiffs’ engagement and was placed on the photographer’s website with the plaintiffs’ permission. The plaintiffs did not give McKenna permission to use their photograph and received no compensation from him. McKenna decided to self-publish Gronking through several online services, including Smashwords, Inc., Kindle Direct Publis hing (“KDP”), CreateSpace, and NOOK Press. Smashwords purports to be the largest distribut or of self-published el ectronic books (“e-books”) in the world. KDP and CreateSpace are self-pub lishing services provid ed by Amazon.com, Inc., to create e-books and books in print. NOOK Pre ss is an e-book platform offered by Barnes & Noble, Inc. Smashwords, KDP, CreateSpace, and NOOK Press played no role in creating, designing, or editing the cover of Gronking

. In order to self-publish hi s book through these companies’ platforms, McKenna had to agree to their various terms of service. Smashwords required th at McKenna warrant that his book did not “violate any right of privacy which is lib elous or violate any pers onal right or other right of any kind of any person or en tity.” To utilize KDP and CreateS pace, McKenna had to represent

1 McKenna’s motion for judgment on the pleadings was denied by the district court and the claims against him are still pending. He is not a party to this appeal. [Page ID 993-98.]Roe v. Amazon.com No. 16-3987

- 3 - to Amazon that he had all the necessary legal ri ghts to his book, including the cover. McKenna had to make similar representations to Barn es & Noble. McKenna acknowledged making these warranties and representations to the Corporate Defendants. Gronking received media coverage in connection with Gronkowski’s participation in the 2015 Super Bowl. The cover of Gronking , which included the plaintiffs’ photograph, was displayed on The Tonight Show , Jimmy Kimmel Live , and at media day for the Super Bowl. The attention given to the book by th e national media appears to be how the plaintiffs became aware that their picture was used on the cover of Gronking

. Following this media exposure, the plainti ffs filed a lawsuit against the Corporate Defendants and McKenna in the Common Pleas Court of Miami County, Ohio, which was later removed to the United States District Court for th e Southern District of Ohio based on diversity of citizenship jurisdiction. Mc Kenna filed a motion for judgment on the pleadings, and the Corporate Defendants filed a motion for summary judgment. The district court denied McKenna’s motion but granted summary judgment in favor of the Corporate Defendants. Roe v. Amazon.com , 170 F. Supp. 3d 1028, 1035, 1040 (S.D. Ohio 2016). This appeal followed.
II. We review a grant of summary judgment de novo. Carl v. Muskegon Cty. , 763 F.3d 592, 595 (6th Cir. 2014). Summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When deciding a motion for summary judgment, courts consid er the evidence and draw all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). The focus of the summary judgment inquiry is whetherRoe v. Amazon.com No. 16-3987

- 4 - the party bearing the burden of proof has presente d a jury question as to each element of its case. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). “The mere existence of a scintilla of evidence in support of plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986). In its opinion, the district court emphasi zed the difference between “publishers” and “distributors,” holding that the Corporate Defenda nts were distributors br oadly protected by the First Amendment because their self-publishing se rvices were the “next logical step after the photocopier.” Amazon.com , 170 F. Supp. 3d at 1038-40. The district court held that “[s]tates may not impose criminal or civil liability against b ooksellers or other dist ributors for distribution where the distributor neither knew nor had any reason to know of alleged wrongdoing pertaining to specific content.” Id. at 1040 (citing Smith v. California , 361 U.S. 147, 153 (1959)). We question the district court’s First Amendment analysis. However, because the record cannot support a finding of liability on the part of th e Corporate Defendants, the grant of summary judgment was proper and we not address that issue. In their complaint, plaintiffs assert thr ee claims against the defendants: wrongful appropriation of their persona in violation of Ohio Revised Code § 2741 (right of publicity), invasion of privacy by means of appropriation (common-law right of publicity), and the privacy tort of false light. Under Ohio’s right of publicity statute, “a person shall not use any aspect of an individual’s persona for a commercial purpose.” See Ohio Rev. Code Ann. § 2741.02(A). Persona means “an individual’s name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value .” Ohio Rev. Code Ann.Roe v. Amazon.com No. 16-3987

- 5 - § 2741.01(A) (emphasis added). While plaintiffs need not be national celebrit ies to assert a right of publicity claim, they must at least “demonstrate that there is value in associating an item of commerce with [their] identity.” Landham v. Lewis Galoob Toys, Inc. , 227 F.3d 619, 624 (6th Cir. 2000); see also McFarland v. Miller , 14 F.3d 912, 919-20 (3d Cir. 1994) (stating that the right of publicity is worthless without association). Similarly, a defendant is subject to liabi lity under the Ohio common-law right of publicity tort when he “appropriates to his own us e or benefit the name or likeness of another.” Zacchini v. Scripps-Howard Broad. Co. , 351 N.E.2d 454, ¶ 1 of syllabus (Ohio 1976), rev’d on other grounds , 433 U.S. 562 (1977). Again, plaintiffs must demonstr ate that their name or likeness has value, Id. at 458 n.4; see also James v. Bob Ross Buick, Inc. , 855 N.E.2d 119, 123 (Ohio Ct. App. 2006) (“It is only when the publicit y is given for the purpose of appropriating to the defendant’s benefit the commercial or other value associated with the name or the likeness that the right of privacy is invaded.”). The mere incidental use of a person’ s name or likeness is not actionable in an appropriation claim. Vinci v. Am. Can Co. , 591 N.E.2d 793, 794 (Ohio Ct. App. 1990) (per curiam). Finally, while it is questionabl e whether the Roes alleged a fa lse light invasion of privacy tort under Ohio law, we will assume that they did so for purposes of this appeal. Under false light, “one who gives publicity to a matter concerning another that places the other before the public in a false light” is liable if “(a) the fa lse light in which the ot her was placed would be highly offensive to a reasonable person, and (b) the actor had knowle dge of or acted in reckless disregard as to the falsity of the publicized matte r and the false light in which the other would be placed.” Welling v. Weinfeld , 866 N.E.2d 1051, 1059 (Ohio 2007).Roe v. Amazon.com No. 16-3987

- 6 - After a careful review of the record, viewing all facts in the light most favorable to the plaintiffs, we conclude that th e plaintiffs have not offered any facts to support a finding of liability on the part of the Corporate Defenda nts. The Roes do not argue, and there is no summary judgment evidence in the record to su ggest, that there was any commercial value in associating their likeness with th e Corporate Defendants. At most, plaintiffs attempted to show that the association between the Roes’ image and the Corporate Defendants is incidental, which is not enough. Vinci , 591 N.E.2d at 794. Further, plainti ffs 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 permi ssion. Plaintiffs conte nd that the Corporate Defendants should have inquired as to whether Mc Kenna 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 . Therefore, a jury could not reasonably find liability, and the district cour t’s grant of summary j udgment was proper.
III. For the reasons above, the judgmen t of the district court is affirmed

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