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Venable attorneys Marcella Ballard and Kristen Ruisi recently participated in an MIP Global Trademark Forum panel on Responsible Advertising, Social Media and Influencers. With Marci moderating and Kristen presenting, the panel also included Jessica E. Cardon, deputy general counsel at Quality King Distributors; Lydia Cheuk, deputy general counsel at Away; and Melissa Moriarty, assistant general counsel at VaynerMedia. During their discussion, panelists shared the following insights:

  1. Brands are relying more on influencers, leading to increased FTC scrutiny

Kristen spoke about how the FTC is becoming stricter in its enforcement of its guidelines, which strive to prevent influencers from making false claims about products or services they haven’t tried and ensure that consumers are aware of advertising relationships. While the responsibility to disclose relationships with the brand they are promoting or endorsing ultimately rests with the influencer, brands still have to work with influencers to ensure they are meeting their disclosure obligations.

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A recent decision from a United States District Court in New York dismissing a defamation claim against cable television host and national correspondent Joy Reid provides a mixed bag of findings in the world of defamation lawsuits. The central issue in Roslyn La Liberte v. Joy Reid was whether the defendant, Reid, had defamed the plaintiff when she re-posted content about La Liberte on social media. Although the decision is generally a garden variety dismissal of defamation claims, the court also rejected the defendant’s Section 230 of the Communications Decency Act (CDA) defense and applied California’s anti-SLAPP statute to award Reid her attorneys’ fees and costs.

The posts at issue concerned a photograph of La Liberte, in which she appears to be shouting at a teenage boy. The photograph was taken at a city council meeting for a highly politicized senate bill, intended to limit local law enforcement’s cooperation with federal immigration authorities. A few days after the photo was taken, an activist named Alan Vargas tweeted the image and suggested that La Liberte was yelling: “You are going to be the first deported . . . dirty Mexican.” Reid re-tweeted the photograph on two separate occasions, first on social media along with the caption:

He showed up to rally to defend immigrants . . . She showed up too, in her MAGA hat, and screamed, “You are going to be the first deported” . . . “dirty Mexican!” He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.

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A federal district court recently dismissed an invasion of privacy and infliction of emotional distress action against Tumblr brought by a Connecticut woman whose ex-boyfriend had uploaded a series of nude photographs on social media and the revenge porn site myex.com. The court found that Section 230(c)(1) of the Communications Decency Act (CDA) expressly preempted the woman’s claims, which treated Tumblr like the “publisher” or “speaker” of the offensive postings.

Although the nude photographs of the plaintiff were taken down, they soon migrated to Tumblr, where users could view the photos, along with her name, links to her social media accounts, and other identifying personal information. The plaintiff repeatedly engaged Tumblr to remove the unauthorized intimate photographs, only to have the images reposted by third parties following removal. The plaintiff ultimately initiated a lawsuit against Tumblr, claiming it did not preemptively remove the photographs even after receiving repeated notice of unauthorized uploads.

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Supermodel Jelena Noura “Gigi” Hadid was not the first celebrity to be photographed by paparazzi and then to post the resulting photo to social media, nor was she the first to be subsequently sued for copyright infringement for doing so. Other celebrities, including Jennifer Lopez and, most recently, Victoria Beckham, have made news for the same situation.

This trend falls into an interesting intersection of two significant tenets of law: a celebrity’s right of publicity in their own image and a photographer’s right to copyright their artistic work. The district court dismissed the case due to a lack of a copyright registration. In addition to that defense, though, her attorneys also raised the defenses of fair use and implied license. The second may have begun paving the way for future legal challenges to clarify these issues by raising a novel argument—implied license—alongside the more typical defense of fair use.

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The Sixth Circuit Court of Appeals recently affirmed the dismissal of a case against actor James Woods over a tweet he posted during the 2016 presidential campaign. Woods, an outspoken conservative, was sued by plaintiff Portia Boulger, who described herself in her complaint as “a very active volunteer and pledged convention delegate for U.S. Senator Bernie Sanders.”

The case arose from inaccurate information shared on social media. On March 11, 2016, Donald Trump held a Republican primary campaign rally in Chicago. That evening, the Chicago Tribune posted a photograph on its Twitter account of a woman at the Trump rally giving a Nazi salute. The next day, a Twitter user posted the photograph, together with a separate photograph of Boulger, and a caption identifying Boulger as an organizer for Bernie Sanders. The Twitter user wrote (falsely) that “[t]he ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It’s another media plant.”

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