Anjos Proibidos (Forbidden Angels) - New York, Ophelia Editions, 2000 - 1st edition - 72 pp. With duotone photos - 23,2 x 16,7 x 2,8 cm - Introduction. Find great deals for Fabio Cabral. “In 2002, Almeida discovered that her picture was being displayed on Amazon.com websites in furtherance of the sale of the second edition of Anjos Proibidos. Amazon’s product detail page displayed the second edition cover photograph of Almeida and a quote attributed to a ten-year old Almeida: ‘I really liked Fabio. Cabral took photographs, and included them in a book titled 'Anjos Proibidos', which in English means 'Forbidden Angels'. This book included pictures of girls aged 10 through 17. Cabral and his publisher were prosecuted in Sao Paulo for publishing child pornography. Almeida's image was displayed at Cabral's two-day exhibit, at which the first edition of Anjos Proibidos was offered for sale, displaying black and white photographs of girls between the ages of ten and seventeen, including a photograph of Almeida inside the book. Two hundred copies of the book were sold before the authorities in Sao Paulo.

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DATE: July 18, 2006

COURT: United States Court of Appeals, Eleventh Circuit (Tjoflat and Hall, Circuit Judges, and Restani, Chief Judge, United States Court of International Trade (sitting by designation). Opinion by Restani)

PLAINTIFF: Thais Cardoso Almeida

DEFENDANT: Amazon.com, Inc.

INTERACTIVE COMPUTER SERVICE: “Almeida does not dispute that Amazon is an ‘interactive computer service.’”

MATERIAL ALLEGATIONS: “At issue here is a photograph of the plaintiff Almeida taken when she was ten years old and displayed on the cover and inside the second edition of the photographic book Anjos Proibidos, or “Forbidden Angels.” In essence, Almeida claims that Amazon should not display her image to promote the sale of Anjos Proibidos because she did not consent and did not receive just compensation for the use of her image.

…

“It is customary business practice for Amazon to provide a product detail page that displays the cover of each book offered for sale, as well as text describing the book.

“In 2002, Almeida discovered that her picture was being displayed on Amazon.com websites in furtherance of the sale of the second edition of Anjos Proibidos. Amazon’s product detail page displayed the second edition cover photograph of Almeida 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.’”

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CAUSES OF ACTION: Violation of Florida’s right of publicity statute, civil theft statute, and common law invasion of privacy doctrine. The panel noted that the “Florida right of publicity does not impose upon interactive service providers an obligation to filter or censor content.”

PROCEDURAL HISTORY: The U.S. District Court for the Southern District of Florida, Marcia G. Cooke, J., granted defendant’s motion for summary judgment, concluding that the CDA preempts the subject matter of Almeida’s right of publicity claim. Almeida appealed.

PROCEDURAL ACTION TAKEN HERE: Affirmed district court’s grant of summary judgment, although with respect to Almeida’s right of publicity claim, on different grounds.

OUTCOME: Because “Almeida’s right of publicity claim based on [Florida statute] would not withstand a motion to dismiss under the law . . . , 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.”

OPINION: “The majority of federal circuits have interpreted the CDA to establish broad “federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” [citing Zeran] In this case, the district court adopted this approach, but even this broad statutory immunity does not apply without limitation. [citing 47 USC 230(e)(1)-(4), that last of which provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property”] . . . Here, the district court did not consider whether immunizing Amazon from liability under the right of publicity would limit any law pertaining to intellectual property.”

…

“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 § 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.”

…

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“While we agree with Almeida that the district court should have addressed § 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 . . . [because] Almeida’s right of publicity claim based on Fla. Stat. § 540.08 would not withstand a motion to dismiss under the law . . . , 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.”

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However, the panel seemed to hint at how it would have ruled were the CDA issue properly before it. Responding in a footnote to Amazon’s argument “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,” the Court noted that “[i]t is also apparent, however, that the right of publicity does not fit neatly into the category of tort-based lawsuits from which Congress sought to immunize interactive service providers, i.e., dissemination of damaging information via the internet.” [citations omitted]