Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, August 15, 2006

Eleventh Circuit Rules Bookseller Did Not Violate Model's Right of Publicity By Displaying Book Jacket On Which She Appears

Model Thais Cardoso Almeida sued, the online bookseller, for displaying a book cover on which she appeared "in furtherance of its sale of the book Anjos Proibidos." Under relevant Florida statutes and the common law she alleged numerous wrongs including civil theft, invasion of privacy and misappropriation. The district court "granted summary judgment in favor of Amazon as to all of Almeida's claims. The district court held that Almeida's right of publicity claim under [sec] 540.08 and common law is preempted by the Communications Decency Act of 1996 ("CDA"), 47 U. S. C. [sec] 230 (2000), and is otherwise unavailable under Florida's statutory first-sale doctrine. As to Almeida civil theft claim, the district court held that Almeida failed to establish Amazon's intent to misappropriate Almeida's image."  The appellate court affirmed, although it noted, "[W]ith respect to Almeida's right of publicity claim, we do so on different grounds."

The case here involves a book which was seized by the Brazilian authorities as a work of child pornography in 1991. "Two hundred copies of the book were sold before the authorities in Sao Paulo seized the remaining copies. Cabral [the photographer] and the book's publisher, Itamarati Grafica, were prosecuted for producing a work of child pornography, and both were acquitted." Note that Cabral is identified in the case as a fashion photographer, and the photographs are identified as artistic. Almeida's mother gave permission for her to be photographed and for her photograph to be included. However, Almeida now contends that she herself never gave permission and that she never received "just compensation for the use of her image."

"In 2000, Ophelia Editions published a second edition of Anjos Proibidos, which is the same in all respects [as the 1991 edition] except that Almeida's picture is now on the book's cover....The second edition was offered for sale on Amazon's website. Generally, Amazon is recognized as a leading internet retailer with a particular focus on online book sales....It is customary business practice for Amazon to provide a product detail page that displays the cover of each book offered for sale....In 2002, Almeida discovered that her picture was being displayed on websites....Amazon's product detail page displayed the second edition cover photograph...and a quote attributed to a ten-year-old Almeida: "I really liked Fabio. He's super-cool. I never felt any shame in making the photos."

"On March 6, 2003, Almeida' attorney sent a letter to Amazon requesting statutory damages...for its unauthorized use of her image. On March 11, 2003 Amazon responded...saying that it would voluntarily remove the listing...from its websites. The listing...was in fact removed promptly....Moreover, there is no indication that Amazon had knowledge or should have had knowledge that the book cover displayed an image that the author and publisher were not authorized to use. On July 7, 2003, Almeida' attorney sent a civil theft demand letter to which Amazon apparently did not respond.

"On November 14, 2003, Almeida filed suit....On January 2, 2004, Amazon invoked diversity jurisdicition...On July 30, 2004 the district court granted Amazon's motion for summary judgment.


"First, we address the district court's conclusion that the CDA preempts the subject matter of Almeida's right of publicity claim....Whether the CDA immunizes an interactive service provider from a state law right of publicity claim is an issue of first impression for this Court. Few federal courts have considered the effect of [sec] 230(e)(2) on the CDA's grant of immunity, although it is clear that "any law pertaining to intellectual property" at least refers to the three traditional forms of intellectual property: copyright, patent, and trademark....Thus, federal district courts have held that [sec] 230(e)(2)unambiguously precludes applying the CDA to immunize interactive service providers from trademark claims.... Almeida contends that the CDA does not preempt section 540.08 because it is a quintessential right of publicity claim, and the right of publicity is a widely recognized intellectual property right....

"Further, Almeida argues that [sec] 230(e)(2)extends to all intellectual property rights, even non-traditional state-law intellectual property rights....  Indeed, courts have held that intellectual property is not a static concept for purposes of the CDA....Almeida contends that extending the meaning of [sec] 230(e)(2) makes sense because the purpose served by publicity rights is similar to that of traditional intellectual property rights....Amazon responds that even if the right of publicity protects a type of intellectual property right, Congress did not intend for [sec] 230(e)(2) to apply to publicity rights. First, Amazon argues that Congress did not intend by the CDA to protect state-law claims....Second, Amazon argues that Almeida's right of publicity action is a tort-based suit, and Congress did not intend to limit the CDA's immunity with respect to tort-based suits. Amazon points to the Sixth Circuit's description of the CDA's purpose in Zeran,

Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.

"Thus, while there appears to be no dispute that the right of publicity is a type of intellectual property right, Almeida argues that it is not clear from the statute that "any law pertaining to intellectual property" includes claims based upon state intellectual property rights. Moreover, neither party points to any legislative history indicating Congress' intent as to the effect of [sec] 230(e(2)....

"While we agree with Almeida that the district court should have addressed [sec] 230(e)(2)before invoking the CDA's grant of immunity, we believe that regardless of the answer to this question, the district court did not need to address the difficult issues of application of the CDA under the facts of this case. In Gucci, the court described the initial [sec] 230(e)(2) issue as, "whether Plaintiff's complaint would withstand a motion to dismiss even in the absence of [sec] 230." ...  In this case, we ask whether an internet retailer, such as Amazon, could be held liable under Florida's right of publicity statute for displaying a book's cover image in furtherance of the book's sale. As we explain below, Almeida's right of publicity claim based on [Florida Statutes sec.]540.08 would not withstand a motion to dismiss under the law. Therefore, it was unnecessary for the district court to determine whether the CDA preempts Almeida's state law right of publicity claim, and we do not reach any of Almeida's challenges to the district court's application of the CDA here."

The case is Almeida v., 19 Fla. L. Weekly Fed. C 810. Read the entire opinion here.

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