Social Media Influencers are After Media Companies for Stealing Their Instagram Posts
Last June, law-degree holding fashion blogger, Nita Batra—who holds 215,000 followers on Instagram—filed a class action lawsuit against media company PopSugar for profiting on content from thousands of social media influencers for use on PopSugar’s website without authorization.[1] In her complaint, Batra raised Digital Media Copyright Act (“DCMA”) claims, as well as Lanham Act claims.[2]
She alleged that the company not only copied the influencers’ images, but also “removed affiliate [commissionable] product links associated with the original images, replacing them with their own.”[3] PopSugar’s act of removing the links in effect interfered with Batra’s contract with an online shopping platform called LIKEtoKNOW.it or LtK, which pay Batra commissions based on how many of her followers purchased advertised items using Batra’s links to LtK’s site.[4] According to Sugar’s statement, his company had agreed to “pay [any influencers] in full” for use of their content.[5] However, Batra responded that both Sugar’s tweet and statement were false; she “hasn’t been paid a dime.”[6]
Since then, two other influencers—Cathy O’Brien and Laura Adney—have joined in and filed a lawsuit of their own against PopSugar on similar massive infringement claims.[7] Specifically, O’Brien claimed that “PopSugar scraped influencers’ content, photos, brand, likenesses, and logos, and used them to create profiles for each influencer on [the “Looks” section of] the PopSugar website for [its] own commercial gain.”[8]
With U.S. District Judge Haywood S. Gilliam Jr.’s recent ruling, it seems that PopSugar will not be able to evade this multi-million-dollar class action lawsuit. Last month, Judge Gilliam denied the media company’s motion to dismiss.[9] Judge Gilliam held that Batra met her burden in establishing a “plausible inference . . . that PopSugar removed the [copyright management information “CMI”] from plaintiff’s Instagram posts knowing that removing the CMI would help to conceal the alleged infringement of plaintiff’s images.”[10] This finding was sufficient to sustain Batra’s DMCA claims.[11]
PopSugar argued that Batra had failed to sufficiently plead a copyright claim because she “had not yet identified which photos were allegedly displayed without permissions” by alleging the registration dates of the infringed works.[12] Judge Gilliam rejected this argument.[13] Further, Judge Gilliam added that while Batra will need to establish copyright registration dates to survive summary judgment on her statutory damages claim and serve as a class representative under Rule 23(a), Batra’s pleadings were sufficient at this stage of the litigation.[14]
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