On February 7, 2019, a federal trial court in California ruled in favor of a social media influencer’s copyright, trademark, interference with contract, and right of publicity class action lawsuit and denied the defendant’s motion to dismiss. As a result, the social media influencer can proceed with their claims that the defendant website copied social media photos and information but removed the links used by the influencer to monetize social media pages. (Batra v POPSUGAR, Inc., No. 18-cv-03752-HSG (N.D. Cal. Feb. 7, 2019) (2019 WL 482492).
The plaintiff, a social media influencer, filed a class action lawsuit in federal court, on behalf of herself and other social media influencers, claiming that the defendant website had violated their rights in six ways:
- Removed/altered their copyright management information, in violation of the DMCA;
- Made false or misleading representations of endorsement in violation of the Lanham Act;
- Misappropriated the social media influencers’ likenesses and infringed their right of publicity;
- Violated California’s unfair competition law;
- Intentionally interfered with plaintiffs’ contractual relationship with the site monetizer; and
- Infringed the copyright in the photos posted on the social media pages.
Although many of our readers think of the Digital Millennium Copyright Act (DMCA) in connection with the “notice and takedown procedure” on websites, the DMCA made it a violation of the federal copyright law to remove from the work the name and other identifying information of the author of a work—so-called “copyright management information” or “CMI.”
In this case, the plaintiff’s posts typically included a photo and a sidebar with identifying information about the author, including the author’s name and links to personal websites or social media pages.
The court found that the plaintiff’s claim survived the defendant’s motion to dismiss because the defendant allegedly scraped the photos without the sidebar’s CMI. In addition, the court found a “plausible inference” that the defendant removed that information “knowing that removing the CMI would help to conceal the alleged infringement of plaintiff’s images.”
The plaintiff claimed that the use of the social media influencers’ names falsely implied that they endorsed or were otherwise affiliated with the defendant’s site in violation of the federal Lanham Act. The defendant claimed that the relevant goods and services for Lanham Act purposes were those that users actually purchased from the defendant’s site. The court disagreed.
The court found that the complaint alleged consumer confusion not in the product endorsements on the site, but rather in the consumer’s impression that the influencer endorsed the defendant’s site and services thereunder.
Preemption of state law claims
The defendant claimed that the plaintiff’s three state law claims (right of publicity, violation of California’s unfair competition law, and interference with contract) were preempted by the federal copyright law. Our readers are probably aware that the U.S. copyright law preempts state law claims that are “equivalent to any of the exclusive rights within the general scope of copyright” (17 U.S.C. § 301(a)). The Ninth Circuit uses a two-part test to determine whether a state law claim is preempted:
- Does the state law claim fall within the subject matter of copyright?
- If so, are the state law rights asserted equivalent to the exclusive rights under the copyright law?
Although photographs can be the subject matter of copyright, in this case, the plaintiff claimed infringement of her right of publicity—not only her likeness, but elements of her identity. Therefore, the court found that this right was not equivalent to exclusive copyright rights.
Similar, the tortious interference with contract claim involved the defendant’s alleged removal of the monetization links that were associated with the influencers’ images—not simply copying the images themselves. Therefore, the court ruled that these right were not equivalent to exclusive copyright rights.
Finally, with respect to the California unfair competition claim, because that claim relied on the same facts as the tortious interference claim, the court ruled that claim was also not preempted.
Moving on to the interference with contract claim, the plaintiff had the burden to show five elements:
- A valid contract between the plaintiff and a third party;
- Defendant’s knowledge of the contract;
- Defendant’s intentional acts, designed to induce a breach or disruption of that contract;
- Actual breach or disruption of the contract; and
- Resulting damage.
The court found that the plaintiff had pled sufficient facts to move forward. With respect to elements 2 and 3 above, the court found that the defendant had knowledge of the influencer’s contract with the third party and the defendant had “general knowledge of the common industry practice of affiliate marketing,” plus the defendant’s intentional removal of the monetization links prevented performance of that contract.
Finally, the plaintiff alleged copyright infringement with respect to the photos appearing on the social media pages. Plaintiff alleged that the class members had either registered the copyright in the photos or had applied for registration. The court found this allegation was sufficient at this time.
This case is in the very early stages, but it can serve as a warning to anyone considering copying online content: it can be a very expensive way to land in federal court.