Champion v. Moda Operandi, Inc.

Background

Forty-three professional models alleged that Moda Operandi and the companies publishing Vogue used photographs of them modeling designer clothing without consent. Vogue’s online runway coverage included links labeled “Buy on Moda Operandi” or “Shop This Look,” which directed viewers to Moda’s website. Moda also displayed runway photographs on its own website, where consumers could purchase the clothing.

The models asserted false-endorsement claims under Section 43(a) of the Lanham Act, alleging that the images falsely suggested they endorsed Moda as a place to buy the clothing. They also asserted claims under Sections 50 and 51 of New York’s Civil Rights Law, which address unauthorized use of a person’s name or likeness for trade or advertising. Both groups of defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the complaint did not plausibly state claims for relief.

Lanham Act claims against the Vogue publishers

The court dismissed all Lanham Act claims against the Conde Nast defendants with prejudice. It held that Vogue’s runway feature was an expressive work because its overall purpose was fashion reporting and commentary, even though it contained commercial links to Moda.

Applying the First Amendment protection known as the Rogers test, the court held that the models’ photographs were artistically relevant to the fashion coverage and that the feature did not explicitly mislead viewers into believing that the models endorsed or were affiliated with Moda. The court also separately held that the 37 models whose photographs appeared only in Vogue slideshows had not plausibly alleged a misleading representation or a likelihood of consumer confusion, because the slideshows did not identify Moda and the phrase “Shop This Look” did not indicate which retailer the link would open.

Lanham Act claims against Moda

The court dismissed with prejudice the Lanham Act claims against the plaintiffs identified in the order as Cleveland, Taylor, Delozier, Bui, Knorr, Sigurdardottir, Halbert, Stoddart, Medina, Hill, Abioro, Grenville, Hartzel, Ayerdi, Meloqui, De Oliveira, and Urushadze. For six of those plaintiffs, the complaint did not adequately allege that their photographs appeared on Moda’s website. The court also concluded that the photographs of the models whose faces were anonymous or unrecognizable could not plausibly support a false-endorsement claim, and that Robinson had not alleged sufficient facts showing public recognizability.

The court held that the remaining 25 plaintiffs had pleaded enough facts for their Lanham Act claims against Moda to proceed. Unlike Vogue’s editorial use, Moda’s use of the photographs was solely connected to displaying clothing for sale and was not protected by the Rogers test. The court found that the complaint plausibly alleged a misrepresentation and that some of the factors used to assess likely consumer confusion could favor the models after discovery. The court identified Champion among the 25 plaintiffs whose Lanham Act claims against Moda remained.

New York publicity claims

The court dismissed with prejudice the New York publicity claims of the non-New York domiciliaries listed in the order, including Champion. It held that New York’s publicity law does not protect a person who was not domiciled in New York when the alleged injury occurred. The court also dismissed with prejudice the claims of the four plaintiffs who had moved to New York after filing the complaint because they had not alleged facts showing that the challenged images remained available after they became New York domiciliaries.

The claims of Halbert, Delozier, Harris, and Bui were instead dismissed without prejudice. They were allowed until October 8 to file an amended complaint alleging facts showing that their claims accrued after they became New York domiciliaries and while the images remained publicly available. The court stated that any amendment could address only those four plaintiffs’ publicity claims unless the court later authorized additional amendments.

The publicity claims of the 17 plaintiffs alleged to be New York residents remained against Moda because Moda had not moved to dismiss those claims. The court also retained supplemental jurisdiction over the remaining publicity claims against the Conde Nast defendants, rather than sending those claims to state court, because the claims against both defendants raised common legal questions and severance would not promote judicial efficiency.

Disposition

The court granted in part and denied in part the defendants’ motions to dismiss. The order dismissed all Lanham Act claims against the Conde Nast defendants with prejudice; dismissed the specified 17 plaintiffs’ Lanham Act claims against Moda with prejudice; dismissed the specified non-New York plaintiffs’ publicity claims with prejudice; dismissed Halbert, Delozier, Harris, and Bui’s publicity claims without prejudice subject to the limited amendment described above; and otherwise denied the motions.