February 7, 2023

A Model Case for the Right of Privacy

In 2021, the U.S. Court of Appeals for the Third Circuit held in Hepp v. Facebook that Facebook, Reddit, and others were not shielded by section 230 of the Communications Decency Act (“CDA”) from right of privacy and publicity claims brought by Philadelphia news anchor Karen Hepp. In that case, Hepp’s image was used without her permission in ads for a dating service on the social media platform. The Court concluded that, although Defendants might otherwise have immunity from liability under section 230, Plaintiff’s right of publicity claims fell within an exception in the CDA for “intellectual property” claims. 

Looking at New York law, a new decision in the Southern District of New York has reached the opposite conclusion. 

The recent case — Ratermann v. Pierre Fabre USA, Inc., et al., No. 22 Civ. 325 (S.D.N.Y.) — was brought by model Patty Ratermann. She granted a license to her image to video marketing company QuickFrame, Inc. This license limited the use of her image to Instagram.

QuickFrame licensed her image to Pierre Fabre, the company behind the skincare brand Avène. Despite the fact that the license provided that Ratermann’s image could only be used on Instagram, Raterman discovered it was being used to promote Avène products on Pierre Fabre’s website, as well as on the websites of Amazon, Walmart, and Ulta. 

Ratermann sued, claiming, among other things, that these advertisements exceeded the scope of QuickFrame’s license and violated her rights under New York Civil Rights Law sections 50 and 51.

These sections codify New York’s law on the right of publicity. They protect against the unauthorized exploitation of personal traits for advertising. More specifically, section 50 makes it a misdemeanor for a person or corporation to use “for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person” and section 51 provides civil remedies for violations of section 50. 

The Defendants moved to dismiss with Amazon, Walmart, and Ulta claiming immunity under section 230 of the CDA, which protects a provider or user of an “interactive computer service” from being liable for information provided by another. The purpose here is to protect websites that host third-party content from liability, allowing them to function without facing potentially crushing legal liability for the acts of third-parties. In layman’s terms, Amazon, Walmart, and Ulta argued that because Pierre Fabre created the ads with Ratermann’s unlicensed image, under section 230 they were not responsible for the content. 

In response, Ratermann argued her claims under sections 50 and 51 fell within the exception for “intellectual property” relied on by the Third Circuit in Hepp. The Southern District of New York rejected Ratermann’s argument that sections 50 and 51 provide trademark-like protection. Instead, it concluded that these sections protect privacy, not property. Based on this, the Court dismissed Plaintiff’s claims against Amazon, Walmart, and Ulta. 

While this conclusion certainly lines up with the purpose of section 230, there are some problems with the Court’s logic. 

For starters, if, as the Court concluded, Plaintiff’s claims under N.Y. Civil Rights Law sections 50 and 51 are purely intended to enable people to protect their privacy from unwanted intrusion, why did the New York State Legislature recently extend the protections of these sections to dead people who presumably don’t have any interest in privacy? 

Moreover, there is certainly an element of intellectual property protection to claims under sections 50 and 51. Just like copyright, trademark or patent law, claims under these sections are intended to prevent third-parties from cashing in or taking the value associated with a person’s name or image. Consistent with that, Plaintiff — a model — is seeking to recover her losses or defendants’ profits associated with the unauthorized use of her image. She’s not suing because someone grabbed an unflattering picture of her with a long lens. The Court, however, brushed away these concerns by claiming that such rights exist only in the common law right of publicity (which New York does not recognize).

While Ratermann’s team is considering an appeal in the matter against the online retailers, their breach of contract claim against QuickFrame and right of publicity claims against Pierre Fabre continue to move forward.