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In a class action filed Thursday in New York federal court, Frankel accuses the platform of illegally profiting off of failing to snuff out advertising partners who misappropriate the images and voices of influencers to peddle bogus goods. She’s pushing for policy changes to enhance protections around the likeness of creators.
“Unscrupulous companies and individuals have purloined the images, voices, and content of Ms. Frankel and Class Members to sell counterfeit items through the use of TikTok’s platform,” reads the complaint. “Despite demands on TikTok to remove and police this corrupt conduct, TikTok has ignored such demands, and even taken countervailing positions.”
Frankel points to an ad featuring her endorsing a knockoff cardigan. She says that a scammer edited one of her previous posts talking about a different cardigan to make it appear as if she’s promoting the knockoff. When she posted a video warning her followers of the fake ad, TikTok removed her post as “abusive,” according to the suit.
The proposed class action claims that hijacking the likeness, images and voices of well-known influencers, like Frankel, has become commonplace to promote counterfeit products. TikTok is incentivized to illegally neglect the practice, the suit says, because of the advertising revenue it generates.
“Ms. Frankel has invested substantial effort in preserving, protecting, and honing her reputation, and has amassed substantial goodwill and a favorable reputation during her career,” the complaint reads. “By misappropriating Ms. Frankel’s voice and likeness, TikTok has not only traded on Ms. Frankel’s earned goodwill but are also depriving Ms. Frankel of the ability to control her reputation.”
According to the Federal Trade Commission, consumers lost $770 million in social media scams in 2021, nearly a quarter of all reported fraud losses in the U.S. and almost triple the $258 million lost in 2020.
The suit challenges the boundaries of Section 230 of the Communications Decency Act, a federal law shielding internet platforms from liability for content hosted by third parties. TikTok will likely turn to Section 230 in defense of its practices, but it’s not a surefire winner — as it has been in the past in cases dealing with alleged liability by social media companies for carrying user posts.
In September 2021, a federal appeals court revived a lawsuit from a TV journalist in Philadelphia suing Facebook over carrying ads using her image to promote erectile dysfunction cure and online dating apps. A federal judge initially dismissed the suit, pointing to Section 230 protections, but the 3rd Circuit Court of Appeals sided with Karen Hepp that Facebook could’ve misappropriated her right of publicity. The decision revolved around the judges concluding that Hepp’s face could constitute intellectual property.
Section 230 has a carveout for claims dealing with intellectual property so platforms can’t get away, for example, with hosting pirated content.
Like Hepp, Frankel argues that TikTok is hosting content that infringes on her property rights that are subject to protection under right of publicity laws. She claims that the platform is illegally profiting off of her likeness.
“The copyrighted voice files easily satisfy this standard for originality,” the complaint reads. “The various designs were created by Ms. Frankel who has subsequently copyrighted this material.”
TikTok didn’t immediately respond to requests for comment.
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