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
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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