PopSugar, accused of misappropriating influencer images, fails to dismiss

She’s Not Gonna Take It

Here’s an update on noted Instagram celebrity Nita Mann, aka Nita Batra, a fashion influencer with a law degree who took aim at PopSugar, one of her generation’s most important lifestyle companies.

In brief, Batra (@nextwithnita, with nearly a quarter-million followers and close to 1,800 posts) accused PopSugar (with 27 million readers and a reach to half of all millennial women in the country) of swiping her pictures from her Instagram account and posting them on its former shopping platform, ShopStyle.

Why wouldn’t Batra welcome the extra publicity? Because PopSugar allegedly added affiliate links from the images to ShopStyle. Not only did these links earn money from Batra’s images without her permission or participation, she claimed, they also threatened the value of Batra’s own affiliate links.

Did Batra call upon her law degree when she hit PopSugar with a slew of charges, including violations of the Digital Millennium Copyright Act (DMCA), copyright infringement, violations of her right of publicity, violation of the Lanham Act and violation of California’s unfair competition law? We don’t know, but considering that she’s seeking profits or statutory damages of up to $150,000 per photo, it’s clear she means business.

You can read our previous coverage of Batra’s suit here and a story about a similar lawsuit here.

The Takeaway

The latest development: Batra’s case survived a motion to dismiss by PopSugar in a recent order executed by California’s Northern District.

Here are some highlights.

The court reaffirmed that the “Instagram Sidebar” – the right-hand information column that accompanies photos in posts on the service – is copyright management information under the DMCA. Batra had argued that PopSugar had violated the act when it used the photos but disposed of the copyright information in their post.

Against Batra’s Lanham Act claims, PopSugar attempted an interesting defense. The company claimed that the act properly covers only the products worn or held by Batra in the photos, thereby bypassing her claim that the use of her name and likeness implied endorsement. The court rejected PopSugar’s argument, writing, “The false impression alleged in the complaint is that Plaintiff endorses or is affiliated with Defendant’s service, not that Plaintiff falsely endorses the products themselves.”

PopSugar also attacked Batra’s publicity claims, stating that they were preempted by the Copyright Act because her likeness was contained within photographs, which fall within the purview of the act. Again, the court went in the other direction. Regarding the publicity claims, the court held that “[a]lthough Plaintiff’s allegations in part involve the misappropriation of photographs, those photographs are not the exclusive subject of Plaintiff’s right of publicity claim. Plaintiff’s claim additionally relies on information outside of the photographs, including Plaintiff’s ‘name and/or other identifying information’ associated with Plaintiff’s likeness.”

A good day in court for Batra; not so sweet for PopSugar.