In a case that could have addressed unresolved issues about preemption under the Communications Decency Act and the nature of right of publicity as a IP claim, the Eleventh Circuit court instead crafted an interesting analogy that has the potential for future development in E-Commerce cases.  In Almeida v. Amazon.com, Inc., the plaintiff sued Amazon.com, alleging violation of the right of publicity where Amazon published a book cover on a product page that included plaintiff's photo.  Because there was doubt as to whether the original licensing rights were sufficient to cover the edition published, Almedia claimed that the use of the photograph was unauthorized.

The district court ruled that Section 230 of the Communications Decency Act preempted the right of publicity claim because the right of publicity claim was not an intellectual property claim and therefore not subject to an exception in Section 230.  Section 230 prevents the provider of an interactive service from being treated as the publisher of the content of another content provider, but expressly does not preempt intellectual property claims.  While several cases, and general notions of the breadth of IP, law likely put the right of publicity under the intellectual property umbrella, the Almedia court declined to rule on that basis.

The appeals court instead looked at the nature of the publication, focusing on the fact that customers of Amazon.com who shop for books don't have access to the bookshelves found in a traditional bookstore.  Amazon's use of book covers is, in that view, the online equivalent of bookshelves and thus, the images are not used for "trade, commercial, or advertising purposes" in contravention of the publicity rights laws.   At first glimpse, that rationale seems to make sense.  However, it certainly opens the door to interesting interpretations in the future, particularly in light of the fact that the virtual bookshelf is so easily reproduced and transferred. 

As an interesting side note, the book in question was Anjos Proibidos, a pictoral book containing semi-nude images of children that was seized as child pornography by Brazilian authorities  in 1991.