Ratermann v. Pierre Fabre USA, Inc.

Background

Patty Ratermann, a model, signed a single-use license with QuickFrame, Inc. in 2020. The license allowed QuickFrame to use her likeness on Instagram only. Ratermann later alleged that her likeness appeared in advertisements for Pierre Fabre USA, Inc.’s Avène products on the Avène website, on Amazon, Walmart, and Ulta websites, and in a Walgreens store. She alleged that she had not consented to those uses.

The remaining claims were: claims under Sections 50 and 51 of the New York Civil Rights Law against all defendants; a false-endorsement claim under Section 43(a) of the Lanham Act against Pierre Fabre; common-law unfair competition against Pierre Fabre; breach of contract against QuickFrame; and fraud against QuickFrame. The defendants filed two motions to dismiss under Rule 12(b)(6), which asks whether a complaint alleges enough plausible facts to support a legal claim.

Rule 8 and group pleading

The defendants argued that the complaint improperly grouped them together and should be dismissed in its entirety under Rule 8, which requires a complaint to give each defendant fair notice of the claims against it. The court dismissed Ratermann’s conclusory alter-ego allegations, but declined to dismiss the entire complaint. Although the allegations distinguishing the defendants were sparse, the court found them sufficient at this stage because Ratermann identified different alleged uses and attached images attributable to the defendants.

New York Civil Rights Law Sections 50 and 51

Sections 50 and 51 prohibit using a living person’s name, portrait, or picture for advertising or trade without written consent and provide civil remedies for violations. The court dismissed these claims against Amazon, Walmart, and Ulta under Section 230 of the Communications Decency Act. Section 230 generally protects an interactive computer service from being treated as the publisher or speaker of content supplied by another party.

The court found that Amazon, Walmart, and Ulta qualified as interactive computer services; that the relevant content came from Pierre Fabre and QuickFrame; and that the claims treated the retailers as liable for disseminating or publishing that content. The court rejected Ratermann’s argument that the retailers were liable for commercial exploitation rather than publication.

The court also held, as a matter of first impression, that Sections 50 and 51 protect a statutory privacy right rather than intellectual property. Therefore, the intellectual-property exception to Section 230 did not apply. The court dismissed Ratermann’s Sections 50 and 51 claims against Amazon, Walmart, and Ulta and terminated those entities as parties.

The court dismissed the claim against Walgreens because the complaint specifically alleged use of Ratermann’s likeness in a California store and provided only a conclusory allegation that Walgreens used it in New York. The court also dismissed the claim against QuickFrame because Ratermann did not plausibly allege that QuickFrame itself made the unauthorized uses beyond Instagram. The court dismissed the claim against Pierre Fabre only to the extent it sought exemplary damages, because knowledge is relevant to such damages but is not otherwise an element of liability under Sections 50 and 51. The claim otherwise survived.

Unfair competition

The court dismissed Ratermann’s New York common-law unfair-competition claim against Pierre Fabre. Such a claim requires specific facts showing bad-faith misappropriation and that the defendant knew it lacked the right to use the likeness. Ratermann did not allege facts showing that Pierre Fabre knew about the limited scope of the license with QuickFrame.

Lanham Act false endorsement

The court dismissed Ratermann’s Section 43(a) Lanham Act false-endorsement claim against Pierre Fabre. A false-endorsement claim generally requires a misleading representation suggesting that a person endorsed goods or services. Ratermann acknowledged that she had endorsed Pierre Fabre’s Avène products by permitting her photograph to be used for that purpose on Instagram. The court held that the alleged use beyond the license’s scope did not, by itself, make the endorsement false or misleading.

Breach of contract

The court allowed Ratermann’s breach-of-contract claim against QuickFrame to proceed. QuickFrame argued that no binding agreement existed because the written license had been modified and signed only by Ratermann, and that the license waived damages. The court found that the complaint alleged an agreement and that the parties’ conduct could support contract formation. It also found that the effect of the modified language and any damages waiver required factual development and could not be resolved on a motion to dismiss.

Fraud

The court dismissed Ratermann’s fraud claim against QuickFrame. The allegations did not satisfy Rule 9(b), which requires fraud to be pleaded with particularity, including the allegedly fraudulent statements, who made them, when and where they were made, and why they were fraudulent. The court also held that the fraud claim duplicated the breach-of-contract claim and did not allege a separate legal duty, a collateral misrepresentation, or recoverable special damages.

Disposition and leave to amend

The court stated that the motions to dismiss were granted in part and denied in part. All of Ratermann’s claims were dismissed except her Sections 50 and 51 claim against Pierre Fabre and her breach-of-contract claim against QuickFrame.

The court declined to grant leave to amend the Sections 50 and 51 claims against Amazon, Walmart, and Ulta, the Lanham Act claim against Pierre Fabre, and the fraud claim against QuickFrame, finding the defects substantive and amendment futile. The court granted leave to amend the Sections 50 and 51 claim against Walgreens and QuickFrame and the unfair-competition claim against Pierre Fabre. Any amended complaint was due within thirty days. The court also stated that Ratermann needed to amend the complaint to properly allege the parties’ citizenship for diversity jurisdiction because the Lanham Act claim had been dismissed.