Chuck: Well, you know, it’s a silly book but it’s a serious lawsuit, “A Gronking To Remember,” kind of a lurid story involving Rob Gronkowski. It’s kind of like a, what do you call it, a romance novel, I guess or I suppose.
Chuck: Literotica. Yeah, but this couple, I guess, they used this couple’s…one of their wedding photos for the cover of this book. And we’re joined by our legal analyst from Martin, Harding & Mazzotti, Chas Farcher. Hi, Chas, how are you?
Chas: Good morning, Chuck. Good morning, Kelly.
Chuck: So explain this federal appeals court ruling because if I understand it right, the couple involved, who didn’t give their permission for their picture to be used, they lost.
Chas: Well, you know, they lost and they won. There’s two lawsuits moving forward. So you’ve got this book, “A Gronking To Remember,” I mean, and there’s the real affront is the title [crosstalk 00:00:43].
Chuck: That’s for sure. We love it. I’m sorry, we admit it.
Chas: But the picture on the front, right, you know, you said it right. It’s a couple, it’s their engagement photo off of their website and the author thought, “Well, hey, you know, this will make a great cover for the book.” So he took the photo, he put it on the book, the book starts to sell. Suddenly it goes nationwide and they realize they’re on the cover of a book they never wanted to be on the cover of.
So they sued the author, but in addition to the author, they also sued several corporate defendants and that included Amazon, Ink, Kindle, and a few other people who they claimed published the book. So an appeals court just ruled that they lost against the corporate defendants.
They allowed the corporate defendants out, but the case against the author is still going forward, and the reason they lost against the corporate defendants is what the court essentially held, was that they weren’t really publishers of the book. Yes, the book was on their site, but the true case is against the defendant author and that case is still moving forward. So they’ve lost and they’ve won.
Kelly: Well, did those retailers make any money off the book, and would they be entitled to a certain percentage of the profits?
Chas: You know, that’s a good question, and I don’t know how much they made or how much they didn’t make. What the analysis really turned on is that the companies that allowed the book to be sold on the website were essentially just in the distribution market. They were more distributors than publishers, so they didn’t really publish the picture.
They didn’t have artistic say in whether or not this couple’s photo was going to be used or not, so I think there is still a case and I think that they still have rights to the photograph. But I think the case is against the author who’s the one who took their photo and used it to help advertise and market and sell his book.
Chuck: Do you think the ruling would have been different if it had been published in hard copy?
Chas: Maybe. Perhaps. You know, I think the ruling would, might have been different if the case had taken place in New York. You know, the real issue is that we have rights of privacy and, more particularly, in New York, we have rights of publicity. In New York we have this civil rights law which prohibits other people from using your photo, your likeness, your voice, for commercial, trade or advertisement. But that’s a creature of state law.
There isn’t really no federal law that’s in place that works nationwide. And they’ve been trying to get one in place but it hasn’t happened, so I think the real issue is where the case occurred, not necessarily whether it’s hard copy or soft copy.
Chuck: Speaking to our legal analyst, Chas Farcher, from Martin, Harding & Mazzotti. Another case involving Massage Envy, 180 cases where their therapists, supposedly, while giving massages, sexually abused a bunch of women. I’m wondering, you know, who’s liable here? I mean, is it the therapist him or herself, or are the managers, or the company itself liable?
Chas: I think it can be both and/or all three, it just depends on the situation. In New York we have causes of action for negligent hiring and retention, and also something called “respondeat superior,” which means the employer is liable for the employee if the employee does something during the scope of their employment, something that’s consistent with the scope of their employment.
So here I think, you know, it’s obvious, and there’s a good argument, that the touching that’s going on is not a part of a person’s regular job. But the question becomes, did Envy Massage, did the employer, did the company know, or should they have known that these people that they’re hiring or these people that they didn’t fire after there were complaints, did they have knowledge that these people were a problem or were going to continue to be a problem?
So I think knowledge or notice becomes an issue, and it seems in many of these cases, there were prior complaints or maybe something popped up on a background check. I think if you have that information and those facts, I think the employer can be held in a lot of these cases.
Kelly: Yeah, it’s an interesting employment situation because there is no real direct supervision of the contact with the patient or the clients because it happens behind closed doors, literally. And so you’re kind of reliant upon those people to report it. Some of the women say they reported it and they were, kind of, brushed off and others say that, you know, they should have been told that there were prior complaints.
So in that situation, you can see where maybe the company opened them self up to liability, but if there’s somebody with nothing in their background and they hire them, and something happens behind closed doors, are they liable for that?
Chas: I think if there’s nothing in the person’s background and it’s the first time something happens, the employer probably has an out. I think if there have been prior complaints and the company either, one, doesn’t fire that person, or doesn’t take any steps to either investigate or verify, I think the employer’s got problems.
You know, you’re right, a lot of it is a “he said/she said” kind of thing in these situations but there still should be a documentation process. If there are prior complaints, maybe clients should be aware of that or maybe this is not the person you want massaging men and women behind closed doors if you’ve had two or three complaints about this person already.
Chuck: WGY legal analyst, Chas Farcher, from Martin, Harding & Mazzotti, 1-800-LAW-1010. Thanks a lot, Chas.
Chas: Have a great day guys. Thanks for having me.
Chuck: Good talking to you.