Accusations of content hijacking will sound familiar to the millennial media machine
The modest AD-ttorneys@law editorial staff rarely pats itself on its collective back, but we called it a few issues ago. We previously reported that fashion influencer Nita Batra’s lawsuit against global media company PopSugar would inspire “various other influencers” to bring “similar claims that the company infringed their personal social media content.”
Here they come.
Just a quick review of Batra’s allegations: As an online fashion influencer, Batra (who goes by the name Nita Mann on Instagram) is often sponsored by social media company liketoknow.it. She links her Instagram images to the liketoknow.it service, which allows her fans to purchase the product she’s promoting. Batra gets a percentage of sales generated by users clicking the links in her posts.
In her suit, filed in June as a proposed class action lawsuit in the Northern District of California, Batra accused PopSugar of interfering with this arrangement by copying her photos and posting them to ShopStyle, one of PopSugar’s former shopping platforms, after removing the original links to liketoknow.it and adding new links directing followers to ShopStyle. This practice, she maintains, was an unauthorized use of her persona and deprived her of profits from the effort she had invested in her brand.
She sought damages of up to $150,000 for each photo allegedly misappropriated by PopSugar.
PopSugar is a global media and technology company whose combined platforms have generated an audience of 27 million, with a focus on fashion-minded female millennials, so there’s a lot of room for overlap between the company’s media efforts and influencers like Batra.
New Kids on the Block
Meet Cathy O’Brien and Laura Adney. O’Brien is the force behind the fashion and lifestyle blog Bay Area Fashionista (“California Casual with a touch of glam”), while Adney is the author of the Have Need Want blog (“a consultative and friendly approach to personal styling”). Like Batra, the pair filed a proposed class action lawsuit against PopSugar in California’s Santa Clara County Superior Court in early June 2018, and PopSugar name-checked Batra’s suit in its July 2018 request to remove the case to California’s Northern District, arguing that O’Brien and Adney’s case contains “several overlapping claims and class allegations.” PopSugar also pointed to other pending litigations against it by influencers other than Batra asserting the same or similar claims as another reason why the suit is better situated in the Northern District.
O’Brien and Adney accuse PopSugar of much of the behavior that’s alleged in Batra’s lawsuit; the claims are similar as well, including violations of the pair’s right of publicity, California’s Unfair Competition Law and intentional interference with a contractual relationship (absent from their suit are the copyright and Lanham Act violations.
While we often cover stories about influencers who run afoul of industry and government advertising disclosure rules, the Batra and O’Brien/Adney cases may be a sign of another trend: influencers flexing their muscle. O’Brien and Adney, in their complaint, cite a Nielsen study that shows that influencers deliver 10 times the return on investment that traditional digital advertising provides. Now that they have grown in number and demonstrate real marketing clout, we may see many more influencers filing suit to defend their roles as major players in the advertising industry.