Wednesday, February 13, 2019

Influencer's laundry list complaint against PopSugar survives motion to dismiss

Batra v. Popsugar, Inc., 2019 WL 482492, No. 18-cv-03752-HSG (N.D. Cal. Feb. 7, 2018)

Batra sued Popsugar for removing the CMI of her photograph, infringing her copyright, violating her right of publicity, intentionally interfering with her contracts, engaging in false advertising, and violating California's UCL. She alleged claims on behalf of a putative class of “persons with large numbers of followers on social media,” also known as “influencers.” [That ought to be a fun class definition.]  The complaint alleged that Popsugar “copied thousands of influencers’ Instagram images, removed the links in the original pages that allowed the influencers to monetize their following, and reposted the images on its own website without authorization with links that allowed POPSUGAR to profit when users clicked through and purchased items.”

DMCA 1202(b): Popsugar alleged that Batra failed to plead that Popsugar had the requisite mental state and that she failed to identify the removed CMI. The court rejected both arguments. The 9th Circuit has held that “the ‘induce, enable, facilitate or conceal’ requirement is intended to limit liability in some fashion—specifically, to instances in which the defendant knows or has a reasonable basis to know that the removal or alteration of CMI or the distribution of works with CMI removed will aid infringement.” Here, Batra alleged that Instagram posts show a photo on the left and sidebar text on the right, with identifying information for the author of the photo, including “his or her name and/or link(s) to personal website(s) or other social media sites, such as a personal YouTube channel.” When Popsugar copied the images, it omitted the sidebar, allegedly constituting the removal or alteration of that CMI. This was sufficient, raising the plausible inference that Popsugar knew that removing the CMI would help conceal the alleged infringement. 

Lanham Act false endorsement/false advertising claim: Popsugar argued that the only relevant goods or services were products bought by users clicking on Popsugar links, and those weren’t falsely described/attributed in any way. But Batra alleged that there was confusion over Popsugar’s own service of posting “shoppable” images of influencers and products, which was sufficient to state a claim.

Copyright Act preemption: Popsugar argued that copyright law preempted the right of publicity, interference with contract, and UCL claims.  For the right of publicity, this argument failed because it was the use of the plaintiffs’ names, other identifying information, and likenesses that was at issue, not the use of the photos as such.  Contract:  The complaint alleges that, pursuant to a contract between Batra and, Batra was “entitled to a portion of the revenue that received from sales resulting from social media users’ use of the app” in connection with her posts. The intentional removal of these links allegedly interfered with her contract.  The court found that the allegation of unauthorized removal of monetized links was an extra element that avoided preemption.  This strikes me as a mistaken extension of the law; it is playing with the definition of “removal” to mean “not copying,” which means that what is alleged is really the unauthorized copying + use of Popsugar’s own links.  But the use of Popsugar’s own links is the kind of economic benefit that doesn’t constitute an extra element of the tort, which is what’s required to avoid preemption. UCL: Not preempted for the same reasons.

Interference with contract: Batra alleged that Popsugar knew of the contract between class members and and general knowledge of the common industry practice of affiliate marketing, and that its removal of links was intentional “in that Defendant intended to disrupt the performance of the parties’ contract and/or knew that disruption of performance was certain or substantially certain to occur.”  This was enough to state a claim for intentional interference.  

The copyright infringement claim was also plausibly pled, despite Popsugar’s argument that Batra didn’t identify the specific infringed works or allege that she’d submitted a complete application for registration before suing.  Batra didn’t plead herself out of court; she alleged dates of infringement and that she had registrations/applications (but not the dates thereof). To survive summary judgment on statutory damages/attorneys’ fees, she’d need the appropriate registration dates, but not yet.

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