Citation[]
Curran v. Amazon.com Inc., 36 Media L. Rptr. 1641, 2008 WL 472433, 2008 US Dist. LEXIS 12479 (S.D. W.Va. Feb. 19, 2008) (full-text).
Factual Background[]
Amazom.com sold a book titled “Killer Elite” about the United States special operations team. The plaintiff picture was used on the cover of the book without his knowledge or consent. The plaintiff sued Amazon.com (and others) for a violation of his right of publicity, as well as invasion of privacy. Amazon.com filed a motion to dismiss.
Trial Court Proceedings[]
The trial court considered whether the plaintiff could sustain the claims under West Virginia law.
Right of Publicity Claim[]
While there is no statutory right of publicity claim in West Virginia, the federal court concluded that a common-law right of publicity is cognizable in West Virginia. While the court held that the plaintiff, as a soldier, might be deemed a public figure, it held that he had not done so, but gave him leave to amend the complaint to say so.
Right of Privacy[]
On his right of privacy claim, the plaintiff claimed that the use of his photograph on the cover of the book was (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of his name or likeness; and (3) false light. Amazon.com challenged the first and third claim.
On the intrusion upon seclusion claim, Amazon.com claimed that there was no seclusion, since the photograph was taken of him in a public location, namely, a combat zone. The court noted that:
| “ | [T]he place of the occurrence is relevant to a determination of the sufficiency of the evidence of intrusiveness, [but] it is not determinative of whether an intrusion into one's "solitude and seclusion" has occurred. | ” |
However, the court held that the plaintiff had not properly plead facts that would give rise to an intrusion into seclusion claim, and therefore, dismissed the claim.
On the false light claim, the court agreed with the plaintiff that the title of the book includes the word “killer” and he is not a killer, which could be considered a false statement. The court also felt that calling someone a killer would be highly offensive to a reasonable person. As such, the court denied Amazon.com’s motion as to the false light claim.
Defenses[]
Amazon.com raised several affirmative defenses, including the newsworthiness, incidental use, and the "traditional book seller" defense from Almeida v. Amazon.com, Inc.,[1] The court felt that it was premature to rule on these defenses on a motion to dismiss.