(Reuters) – Patti Reiterman is a model. She uses her own images to make money. But a Manhattan federal judge’s first ruling Tuesday prevented Ratermann from suing online companies for ads that allegedly displayed her picture without her permission.
This ruling may appear to contradict the controversial 2021 Court of Appeals for the Third Circuit decision in Hepp v. Facebook. In the Hepp case, the Court of Appeals concluded that Facebook was unprotected from the privacy and publicity claims made by Karen Hepp, her newscaster for The Philadelphia News.
You may recall the doomsday predictions that followed the Third Circuit’s decision in the Hepp case. Internet advocates have warned that online companies need to revamp their operations for fear of inadvertently displaying images of celebrities or semi-celebrities. Nevertheless, the Third Circuit refused to reconsider its ruling, and the majority characterized it as limiting.
The new Ratermann decision appears to confirm that the Third Circuit’s Hepp decision may not be as significant as detractors predicted. Indeed, Manhattan U.S. District Judge Jesse Furman, in his Opinion on Ratermann, wrote that the Third Circuit’s reasoning in Hepp “concluded that Ratermann had no viable claims against online companies.” to reinforce the
You will no doubt wonder why Laiterman’s claim was not accepted and Hepp’s was not. Both plaintiffs alleged that their publicity rights were violated by unauthorized photos in online advertisements.
The answer lies in the differences between the laws of New York and Pennsylvania.
New York State protects the privacy of its residents through two civil rights clauses governing the right to privacy and the right to publicity. Attorneys for Doniger/Burroughs Laiterman’s lawyers allege that Amazon Inc, Walmart Inc, and Ulta Salon, Cosmetics & Fragrance Inc have violated the laws of the model under these New York laws by displaying images of her without her permission. claimed to have violated their rights.
Specifically, Ratermann claimed that in 2020, video content service QuickFrame Inc signed a license allowing him to use his likeness only on Instagram. Despite that explicit restriction, Ratermann claimed her image ended up being used in online ads for her Avène skin care products on Amazon, Walmart and Ulta. These ads, she argued, were not allowed under her contract with QuickFrame. (Ratermann also sued her QuickFrame and her Avène parent company, but I’m only focusing on her claims about online advertising.)
As you can imagine, defense attorneys for Amazon, Walmart, and Ulta have moved to dismiss Ratermann’s case, citing broad exemptions for online publishers under Section 230 of the Communications Decency Act. Davis Wright Tremaine (for Amazon) and Barnes & Thornburg (for Walmart and Ulta) said there is no doubt that the allegedly problematic ads are covered by Section 230. Section 230 indemnifies online companies under state and federal law for user-provided content. Defendants said none of the companies created Avene ads that allegedly exploited Reiterman’s image.
That argument seems simple enough, but Section 230 has a carve-out on intellectual property claims. Lawyers for Laiterman argued that model privacy rights under New York law are analogous to trademark rights and therefore cannot be preempted by Section 230.
A similar argument was valid for Karen Hepp in Facebook’s case in the Third Circuit. A court of appeals ruled that publicity rights under Pennsylvania law are intellectual property matters. Because state law provides cause of action only for plaintiffs who have invested time and money in building their reputation. Section 230 does not preclude the state’s intellectual property claims, the Third Circuit said, so Hepp can proceed with her publicity rights claim.
But the online defendant in Ratermann’s lawsuit argued in a forceful response that New York law is different. It does not protect property rights, defendants said. Instead, defendants argued that New York law was intended to address the personal injury of having your identity taken away for the commercial benefit of another person.
Fuhrman agreed with Defendant’s characterization of New York’s privacy and publicity law. The judge pointed to a 1951 state appeals court ruling that overturned the dog and pony showman’s case. In this ruling, he sued the NFL for allegedly infringing publicity rights by the dog and pony showman airing parts of the act without his permission. , at the halftime show. The appeals court said “in no uncertain terms” that the state law’s cause of action for violation of publicity rights was due to damage to individuals, not damage to property, Furman said.
That differs from the Third Circuit’s interpretation of Pennsylvania law in Hepp, where the Court of Appeals focused on the state law requirement that plaintiffs demonstrate a financial interest in their reputation, the judge said. . Also, New York’s privacy law doesn’t deal with property, so the Intellectual Property Exception in Section 230 doesn’t apply, Furman said.
Scott Burroughs, an attorney for Ratermann at Doniger/Burroughs, said Furman’s analysis of whether Section 230 preempts New York’s privacy claims is a matter of first impression, so his team is considering an appeal. told me by email that he was doing it. “Given the importance of this issue to people whose likeness is misused online without their consent, we intend to consider all available options,” Burroughs said.
Counsel for Davis Wright and Barnes & Thornburg did not respond to my question.
read more:
Facebook lost bid for new Third Circuit review of newscaster lawsuit
3rd Circuit Court Splits with 9th Circuit, Says Celebrities Can Sue Facebook for Unauthorized Photos
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