Social Media Influencers Beware!

In Petunia Products, Inc. v. Rodan & Fields, LLC and Molly Sims, the United States District Court for the Central District of California held that a social media influencer – a person “presumed to have the power to affect the purchase decisions of others” – could be sued for direct trademark infringement in connection with the products the influencer endorsed.

Young influencer stands in front of camera.

In this case, the plaintiff, a cosmetics company, owned the BROWBOOST®  trademark, which it used in connection with its eyebrow product. Defendant Rodan & Fields (“R&F”), a competitor of plaintiff, marketed its own eyebrow product called “Brow Defining Boost.” Plaintiff claimed the R&F product infringed on its trademark and that R&F’s promotion of its product on social media with the hashtag #BROWBOOST diluted plaintiff’s social media presence. Plaintiff also alleged that a social media blogging influencer employed by R&F, defendant Molly Sims, posted a blog which infringed on plaintiff’s trademark because the blog promoted the allegedly infringing product. Sims moved to dismiss the complaint, claiming plaintiff failed to adequately plead claims for direct trademark infringement, contributory infringement, false advertising, and unlawful and unfair business practices.

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Southern District of New York Rejects Ninth Circuit’s Copyright Analysis Regarding Embedded Images

In a recent case, Nicklen v. Sinclair Broadcast Group, Inc., the United States District Court for the Southern District of New York, rejecting the rationale of a case decided by the United States Court of Appeals for the Ninth Circuit in 2007, denied a defendant’s motion to dismiss a complaint filed by plaintiff who posted a video on Instagram and Facebook only to have defendants embed the video in an online article posted on their websites without having first obtained a license from plaintiff.

The case involved video footage shot by plaintiff, the author and registered owner of a video showing an emaciated polar bear wandering around the Arctic. The plaintiff posted the video to his Instagram and Facebook accounts along with a caption which advised others seeking to use the content commercially to obtain a license to do so. Defendants published an article on their websites about starving polar bears and, using a Facebook and Instagram embedding tool, included the plaintiff’s video in their article without having first obtained a license. Defendants failed to remove the video from their websites after plaintiff sent a takedown notice, leading plaintiff to file a lawsuit which claimed that defendants “infringed his exclusive reproduction, distribution, and display rights” under U.S. copyright law.

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Be Wary When Reposting Pictures on Social Media

One of the most popular types of content shared on social media are photographic images. However, posting an image you do not own the rights to can prove costly, as a New York based fashion designer recently learned thanks to a September 2020 decision issued by the United States District Court for the Southern District of New York.

In Iantosca v. Elie Tahari, Ltd., the district court found the defendant fashion designer, Elie Tahari, liable for copyright infringement after it posted a photograph taken by plaintiff, photographer Mark Iantosca, to the fashion designer’s Facebook and Twitter accounts. The subject photograph depicted a digital content creator wearing the designer’s clothes. The designer posted the photograph on its social media sites without a license or permission from the photographer, who filed suit for copyright infringement.

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