Deciding issue of first impression, district court holds that Section 230 of Communications Decency Act shields major retailers from fashion model’s New York state-law right of privacy claims over use of her likeness to promote skincare products, because New York right of privacy claims do not fall within intellectual property exception of Section 230.
Fashion model Patty Ratermann sued retailers Amazon, Walmart, Walgreens and Ulta; skincare company Pierre Fabre; and video production company QuickFrame, alleging violations of New York’s right of privacy statutes, Sections 50 and 51 of the New York Civil Rights Law, unfair competition, violation of the Lanham Act, breach of contract, and fraud. Ratermann licensed the right to use her likeness to QuickFrame, allowing it to use her likeness to advertise Pierre Fabre products on Instagram only. Ratermann later discovered her likeness was also being used on Pierre Fabre’s website; on the websites of Amazon, Walmart and Ulta; and in physical advertisements in a Walgreens store in California. Ratermann alleged that these advertisements exceeded the scope of the QuickFrame license and brought suit.
Amazon, Walmart and Ulta argued that they were immune from suit pursuant to Section 230 of the Communications Decency Act, which shields online service providers from liability for statements made by others, because New York’s right of privacy claims do not qualify as intellectual property claims, and, accordingly, do not fall within the intellectual property exception of Section 230. The district court sided with the retailers, finding that claims under Sections 50 and 51 of New York’s Civil Rights Law do not constitute intellectual property claims and therefore do not fall within the intellectual property exception. Reviewing New York case law, the district court concluded that Sections 50 and 51 provide a statutory right to privacy, not property. The court explained that the statute focuses on “providing recovery for injury to the person, not to his property or business.”
Ratermann cited a 2021 Third Circuit case, Hepp v. Facebook, which held that Pennsylvania’s right of publicity qualified as a form of intellectual property. There, the court found that Facebook did not qualify for immunity in a lawsuit brought by a Philadelphia news anchor alleging that Facebook’s use of an unauthorized photo of her in an advertisement violated her right to publicity. However, the district court distinguished Hepp. It noted that Pennsylvania provides a right of publicity claim to people who develop their likeness through the “investment of time, effort, and money.” New York’s statute, however, was not intended “to fill gaps in [the] copyright statute or to extend the law relating to unfair competition or to the appropriation of another’s business or enterprise.” Instead, under New York’s statute, the right of publicity falls under the right of privacy and is focused on protecting a person’s “feelings or reputation,” “with the same overtones of mental distress as in defamation.”
The district court dismissed the right of publicity claims against Walgreens. Ratermann alleged only one instance of a Walgreens store in California using her likeness, and subsequently argued that Walgreens stores in New York must have used her likeness as well. The district court found this allegation conclusory and a “naked assertion devoid of further factual enhancement.”
The district court also dismissed Ratermann’s right of publicity claims against QuickFrame because she did not claim that QuickFrame was involved in any of the alleged impermissible uses on the other defendants’ websites. Ratermann’s breach of contract claim against QuickFrame survived, as she sufficiently alleged the existence of a contract notwithstanding the absence of a counter-signature on the copy that she had submitted with her pleading, and further discovery was required to determine whether Ratermann could claim damages. Lastly, the district court dismissed Ratermann’s fraud claim against QuickFrame because it was not alleged with particularity and it was indistinguishable from the breach of contract claim.
Pierre Fabre argued that Ratermann’s right of publicity claim required that she allege a knowing use of her likeness outside the scope of the license. The district court, however, explained that knowledge was only a required element if a plaintiff sought exemplary damages. The court allowed Ratermann’s right of publicity claims to move forward to the extent that she did not seek such damages.
The district court dismissed Ratermann’s unfair competition claim against Pierre Fabre because she did not claim that Pierre Fabre knew about the nature of the QuickFrame license and failed to allege that Pierre Fabre knowingly exceeded its scope. Ratermann’s false endorsement claim against Pierre Fabre also failed, because Ratermann expressly permitted her likeness to be used in connection with Pierre Fabre’s products; therefore, it was not false or misleading to say that she endorsed Pierre Fabre’s products.
Summary prepared by Tal Dickstein and Alex Loh