NY Federal Judge Holds that Retailers Can’t be Held Liable for Using Model’s Face

On January 18, 2023, U.S. District Judge Jesse M. Furman decided that the privacy protections in a New York state civil rights law will not help models beat immunity protections provided to retailers under Section 230 of the Communications Decency Act.

The case began in January 2022 when model Patty Ratermann filed suit against the French cosmetics brand Pierre Fabre. Ratterman alleged that Pierre Fabre took advantage of a deal she had with a video production company, QuickFrame. QuickFrame had a single-use license to use a photo of her on Instagram only. However, more than a year later, Ratterman realized that the same image was being used in advertisements for Pierre Fabre online by retailers including Amazon, Walmart, and Ulta. In May 2022, those companies filed a joint motion to dismiss, citing Section 230 immunity.

Section 230 was passed in 1996 and blocks lawsuits against online platforms based on content created by the platform’s users. However, Ratterman argued that the intellectual property exception to Section 230 applied because the New York right to publicity law provides a “trademark-like intellectual property claim.” On January 17, 2023, Judge Furman held that New York courts have long held that Sections 50 and 51 of the New York Civil Rights Law, outlawing the use of a person’s name or image in advertising without written permission, are more like privacy rights than like intellectual property rights. Thus, Judge Furman held that Ratterman’s claim does not fall within Section 230’s intellectual property exemption, and “Section 230 immunity” applies to Amazon, Walmart, and Ulta.

Ratterman also filed claims against Walgreens, arguing that because she had seen one image of her face promoting Pierre Fabre products inside a Walgreens store in California, Walgreens was likely using her image to promote Pierre Fabre in New York as well. However, Judge Furman dismissed that claim, holding that the allegations were not plausible.

Despite her loss against these retailers, Judge Furman said Ratterman may proceed with her right to publicity case against Pierre Fabre over the use of her likeness to sell its products. Judge Furman also allowed Ratermann’s breach of contract claims against QuickFrame to proceed.

Rattermann’s lawyer, Scott Burroughs, responded to Judge Furman’s ruling saying that this “is an issue that is of great importance to those whose likenesses have been used online without consent. Thus, we will explore all options, including appeal.”

 

Patty Ratermann is represented by Scott Alan Burroughs and Laura M. Zaharia of Doniger Burroughs.

QuickFrame is represented by Daniel A. Schnapp of Nixon Peabody LLP.

Walgreens is represented by Erica W. Fenstermacher of Giordano Glaws & Fenstermacher LLP.

Amazon is represented by Alison Schary, John A. Goldmark and Nimra H. Azmi of Davis Wright Tremaine LLP.

Pierre Fabre, Ulta Salon and Walmart are represented by Niraj J. Parekh of Barnes & Thornburg LLP.

The case is Ratermann v. Pierre Fabre USA Inc. et al., case number 1:22-cv-00325, in the U.S. District Court for the Southern District of New York.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving intellectual property law (not including patents), having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.

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