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Embrace to remember goes to court

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Embrace to remember goes to court

An unfortunate couple who found their engagement picture on the cover of an erotic novel about a football player have no legal recourse against the book’s distributors.

In December 2014, Greg McKenna wrote and self-published “A Gronking to Remember” under the pseudonym Lacey Noonan. The “fictional work of erotica and satire” featured “the make-believe exploits of a married woman who becomes fascinated with New England Patriots football player Rob Gronkowski,” according to the Nov. 21 ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in John Roe; Jane Roe v. Amazon.com et al.

To create part of the cover, Mr. McKenna downloaded a photograph of the plaintiffs embracing that he found on the internet. It had been taken to commemorate the plaintiffs’ engagement and placed on the photographer’s website with their permission. They did not give Mr. McKenna permission to use their photograph and received no compensation from him.

The book received widespread media coverage, including being displayed on the “Tonight Show” and “Jimmy Kimmel Live” in connection with Mr. Gronkowski’s participation in the 2015 Super Bowl, which is apparently how the couple became aware of it, according to the ruling.

The couple filed suit in U.S. District Court in Dayton, Ohio, against several plaintiffs, including Mr. McKenna, Seattle-based Amazon and other distributors of the book. The court denied Mr. McKenna’s motion for summary judgment, but ruled in favor of the other defendants.

A three-judge appeals court panel unanimously upheld the lower court’s ruling.

The plaintiffs “have not offered any facts to support a finding of liability on the part of the Corporate Defendants” and no evidence tending to show they “knew or had reason to know that McKenna was using their photograph without permission,” the ruling said.

 

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