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Internet Legal Shield Blocks Model’s Right-to-Publicity Lawsuit

Jan. 18, 2023, 4:46 PM

Amazon.com Inc., Walmart Inc., and Ulta Beauty Inc. escaped a fashion model’s lawsuit claiming that they used her image and likeness without permission after a Manhattan federal court ruled that a federal legal shield for online platforms blocks the model’s state law claim.

In a first-of-its-kind ruling for the court, Judge Jesse M. Furman found Tuesday that Section 230 of the Communications Decency Act—which provides broad immunity to online platforms that host user content—mostly blocks Patty Ratermann’s suit even though the law has an explicit exemption for intellectual property claims.

Sections 50 and 51 of the New York Civil Rights Law—which outlaw using a person’s name or image in advertising without written permission—are more akin to privacy protections than to IP rights, Furman wrote for the Southern District of New York.

Ratermann, a model an entrepreneur, filed the lawsuit in January 2022. She said that she signed a single-use license in 2020 that gave the video content platform QuickFrame Inc. the right to use her photo on Instagram only. But she learned more than a year later that her image was being used in advertisements for cosmetics company Pierre Fabre USA Inc.

The complaint said she found her image on Pierre Fabre’s Avène skincare products sold on online retailers like Amazon, Walmart, and Ulta. Those three companies filed a joint motion to dismiss, citing Section 230’s legal immunity. That law, enacted in 1996, blocks lawsuits against online platforms based on content created by the platform’s users, though the shield doesn’t apply to IP infringement.

Ratermann argued that the IP exemption to Section 230 applied because the New York right-to-publicity law provides a “trademark-like intellectual property claim,” but Furman was unconvinced.

The judge said that Ratermann failed to cite cases concerning New York law. “New York courts have long construed Sections 50 and 51 to provide a statutory right to privacy, not property,” Furman said.

Furman cited a 1951 New York state court case, Gautier v. Pro-Football Inc., that concluded that “it is the injury to the person not to the property which establishes the cause of action” for the state right-to-publicity law.

Ratermann’s claim therefore doesn’t fall within the IP exemption, and Section 230 immunity applies, the judge said.

Furman noted that the exemption has created a divide among federal circuit courts. The Ninth Circuit ruled in 2007 that the exception applies only to claims under federal intellectual property law. The Third Circuit, however, ruled in 2021 that Pennsylvania’s right-to-publicity law is an intellectual property law exempted under Section 230, but that court emphasized its “narrow” ruling for the specific state law.

Furman allowed Ratermann’s right-to-publicity claim against Pierre Fabre to advance, along with her breach of contract claim against QuickFrame.

“The interpretation of this statute is of crucial importance to those whose likenesses are exploited online without their consent,” Scott Burroughs of Doniger Burroughs PC, who represents Ratermann, said in a statement. “We are considering all options, including appeal.”

Davis Wright Tremaine LLP represents Amazon. Barnes & Thornburg LLP represents Pierre Fabre, Ulta, and Walmart.

The case is Ratermann v. Pierre Fabre USA Inc., S.D.N.Y., No. 1:22-cv-00325, 1/17/23.

To contact the reporter on this story: Isaiah Poritz in Washington at iporitz@bloombergindustry.com

To contact the editors responsible for this story: Adam M. Taylor at ataylor@bloombergindustry.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com