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Tuesday, 4 November 2014

Unauthorized Use of Photograph to Create Fake Dating Profile Not a Violation of Lanham Act

I found about this case on the SDNY blog, which commented on it and also provided a link to the opinion.

Plaintiff Meltech, a web design and modeling company, filed a suit against the dating site Match.com and parent company IAC, claiming that the site used without authorization photographs of model Melissa Harrington to create fraudulent profiles. Plaintiff owns the rights to photographs of the model under a separation agreement, but not their copyrights. Defendants moved to dismiss. On October 30, Judge Furman from the Southern District of New York (SDNY) dismissed plaintiff’s complaint in its entirety. The case is Yuliana Avalos v. IAC/Interactivecorp. et.al., 13-cv-8351.

The lawsuit was first filed by Yuliana Avalos, who claimed that her photograph had been used without authorization to create fake dating profiles, and brought a proposed class action suit, and her complaint was later amended to substitute Meltech and Harrington as plaintiffs, but Harrington objected to her inclusion in the suit.

Plaintiff had originally alleged that this practice violated New York’s right of publicity law, New York Civil Rights Law Section 50-51, but withdrew it, probably since such an action must be brought by the person whose likeness has been used without permission.
One of These Two Cats is a Fake


False Designation of Origin Claim

Plaintiff claimed that Defendant had violated Section 43(a) of the Lanham Act, which prohibits false endorsement and designation of origin, as the authorized use of the photographs were reverse passing off of these photographs. Reverse passing off occurs when defendant sold plaintiff’s products as his own.

Unsurprisingly, Judge Furman was not convinced by this argument, as he cited the Supreme Court 2003 Dastar case, where the Court held that the purpose of the Trademark Act is not to protect the rights of the creator, and that § 43(a)(1)(A) of theLanham Act, which prohibits using in commerce in connection with any goods or services “any false designation of origin” cannot be interpreted as including an author in the term “origin.” Therefore, as reinforced  by Judge Furman, the Trademark Act cannot be used as a cause of action for plagiarism, and he dismissed this claim.

False Endorsement Claim

Judge Furman noted that Plaintiff’s complaint “could also be read to plead a claim for false endorsement under Section 1125(1)(a)“ as publishing these photographs could have created the false impression that Harrington was approving Defendants’ goods and services. However, as Plaintiff did not claim he owned Harrington’s right of publicity, nor would he have even been able to, as his separation agreement with Harrington was executed under Nebraska law, a state where right of publicity is inalienable, Judge Furman also dismissed this claim.

False Advertising Claim

Plaintiff did not have any more luck with his false advertising claim, which was also dismissed, even assuming that misrepresentations of Defendant’s dating websites were indeed advertising, “a premise that the Court highly doubt[ed].”

Even if such practices were false advertising, Plaintiff did not prove that it was harmed by these practices. To prove harm, Plaintiff would have had to prove that consumers were deceived by the fraudulent use of Harrington’s photographs on the dating sites, and that this deception “led consumers to “withhold trade” from [Plaintiff],” which Plaintiff failed to do, and thus all claims under the Lanham Act failed.

As an aside, the Federal Trade Commission (FTC), which is the agency is charge of protecting American consumers, recently reached a settlement with another online dating service site which had used fake computer-generated profiles, which included photographs, to lure users into signing up for a paid account.

As the practice of creating fake online dating accounts seems to grow, it will be interesting to see if an individual whose likeness has been used without authorization to create such fake profile will file suit for infringement of his or her right of publicity. If Harrington would have filed such claim, it would have likely survived a motion to dismiss. 

Photo is courtesy of Flickr user aJ Gazmen under a CC BY-NC-ND 2.0 license.

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