Federal Judge Rejects Model’s ‘Likeness’ Claim Against Amazon, Walmart

A fashion model can’t sue Amazon, Walmart and Ulta for using her likeness in advertising because the companies are immune under Communications Decency Act Section 230, U.S. District Judge Jesse Furman for Southern New York in Manhattan ruled in an opinion and order Jan. 17 (docket 1:22-cv-00325).

Model Patty Ratermann signed a license in 2020 allowing video production company QuickFrame to use her likeness on Instagram. Ratermann alleges her material licensed for Instagram was used without permission to promote the products of Pierre Fabre, which does business as Avene, on Avene’s website, and on the sites of Amazon, Walmart and Ulta Salon. She alleges her likeness was used in a physical store owned by Walgreens. She sued the companies claiming violations of her right to privacy and/or publicity under sections 50 and 51 of the New York Civil Rights Law, violations of the Lanham Act and unfair competition, breach of contract and fraud.

Pierre Fabre, Amazon, Walmart, Ulta and Walgreens filed a joint motion to dismiss. QuickFrame filed its own motion to dismiss. Amazon, Walmart and Ulta are immune under Section 230, Furman ruled. Because the “gravamen of a claim under Sections 50 and 51 is a violation of the right to privacy,” the intellectual property exception to Section 230 doesn’t apply, the ruling said. Furman dismissed all of Ratermann’s claims except her claim under New York Civil Rights Law against Pierre Fabre and her breach of contract claim against QuickFrame. Attorneys for the plaintiff and defendants didn’t comment Thursday.

It’s a misdemeanor under New York law for a person or company to use a living person’s portrait or picture for commercial purposes without the person’s consent. Walmart, Amazon and Ulta qualify as interactive computer services under Section 230, Furman wrote. Such a service qualifies for Section 230 immunity unless it acts as an information content provider and assists in development of what made the content unlawful, wrote Furman. Her "likeness" was “obtained from other companies, namely Pierre Fabre and QuickFrame,” Furman wrote. Ratermann didn’t seek to hold Amazon, Walmart and Ulta liable for publishing the content, only for exploiting her likeness for ad purposes, Furman wrote: “Even if Defendants ‘used’ Ratermann's likeness ‘for advertising purposes,’ that does not defeat the protection of Section 230.” All three elements of Section 230 immunity are satisfied, the decision said.

The court declined to grant her leave to amend to cure the defects of her Section 50 and 51 claims “against Amazon, Walmart, and Ulta; her Lanham Act claim against Pierre Fabre; and her fraud claim against QuickFrame.” The “defects in those claims are substantive and, thus, any amendment would be futile,” said Furman. Ratermann amended her complaint three times after Walmart, Amazon and Ulta moved to dismiss her Section 50 and 51 claim on Section 230 grounds and Walmart moved to “dismiss her fraud claim as duplicative of her breach of contract claim.”

Ratermann was granted leave to amend her Section 50 and 51 claims against Walgreens and QuickFrame, and her unfair competition claim against Pierre Fabre. Furman noted the defendants’ earlier motions to dismiss didn’t address these claims and the “defects with them are not necessarily incurable.”