Court dismisses lawsuit over ‘A Gronking to Remember’ cover

Foxborough, MA 01/18/15  Rob Gronkowski spikes the ball after making a touchdown in the third quarter at Gillette Stadium Sunday, January 18, 2015. AFC Championship Game between the New England Patriots and the Indianapolis Colts . (Jim Davis/Globe Staff)     PatriotsTabloid
–Jim Davis / The Boston Globe

CINCINNATI (AP) — A federal appeals court has spiked an Ohio couple’s case against companies that distributed an erotic fiction book about a woman’s desire for New England Patriots star Rob Gronkowski.

The 6th U.S. Circuit Court of Appeals ruling Tuesday upheld a lower court’s dismissal of the case against Amazon.com, Barnes & Noble Inc. and Smashwords filed by a couple referred to as John and Jane Roe.

The couple says an engagement photo that shows them embracing was pulled from their photographer’s website without their knowledge and used on the cover of ‘‘A Gronking to Remember.’’ The book was self-published using the defendant companies’ online services by a male author writing under the pseudonym ‘‘Lacey Noonan,’’ according to court records.

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The couple’s lawsuit describes the 2014 book as raunchy and distasteful and says their privacy rights were violated.

The book began showing up in Gronkowski’s media appearances, including at the Super Bowl media day in 2015 and in a jocular reading he gave on ABC’s ‘‘Jimmy Kimmel Live.’’

Court records indicate that the ‘‘Gronking’’ author changed the cover at least twice, first to remove images with the Patriots’ trademarks after the NFL club complained, and then again after hearing from the Roes. The couple sued in Miami County, Ohio, court in February 2015, and the case was then transferred to federal court.

U.S. District Court Judge Thomas Rose in Dayton ruled against the couple last year, saying the corporate defendants were book distributors broadly protected by the First Amendment because their self-publishing services were the ‘‘next logical step after the photocopier.’’

The three-judge appeals panel said the couple failed to show the companies were aware of any photo rights issue.

‘‘We conclude that the plaintiffs have not offered any facts to support a finding of liability on the part of the corporate defendants,’’ Judge Alan E. Norris wrote in its opinion.

Messages were left Wednesday for the couple’s attorney.

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