PopSugar Can't Dodge Influencer's Class Action Lawsuit

Nita Mann - Getty - H 2019
Rodin Eckenroth/WireImage

Media company PopSugar can't evade a class action lawsuit from a fashion blogger who claims the site stole images from thousands of influencers and cashed in on third-party links.

Nitra Batra, who goes by the surname Mann professionally, in June sued PopSugar on behalf of herself and others like her. She claims the site copied influencers' Instagram images, removed links to "shoppable" products that allowed them to monetize their following and then reposted the same images with new links that allowed PopSugar to profit when users clicked through and purchased items. (Brittani Friedman, Zoha Memari, Cathy O’Brien and Laura Adney filed related complaints last summer.) 

U.S. District Judge Haywood Gilliam Jr. on Thursday denied PopSugar's motion to dismiss the complaint in its entirety, finding an Instagram caption plausibly constitutes copyright management information under the law and it's reasonable to infer PopSugar removed the info to conceal the alleged infringement.

Batra's complaint also includes a Lanham Act claim alleging that PopSugar's use of class members' names falsely implies they are affiliated with the company's goods or services and is likely to confuse consumers. The website argued that the only "goods or services" are the products purchased after clicking through links on its site, but Gilliam isn't buying it. 

"Plaintiff alleges that both Plaintiff and POPSUGAR provide an online platform for users to shop for fashion and accessories through other affiliated platforms, by posting 'shoppable' images of influencers and products," writes Gilliam. "Plaintiff has alleged a likelihood of consumer confusion regarding Defendant’s service of providing these 'shoppable' images. ... The false impression alleged in the complaint is that Plaintiff endorses or is affiliated with Defendant’s service, not that Plaintiff falsely endorses the products themselves." 

PopSugar also argued that Batra's claims for right of publicity, contract interference and unfair competition are preempted by the Copyright Act. Again, Gilliam sides with Batra.

"[B]ecause Plaintiff alleges an unlawful use of her likeness by Defendant, and further alleges the misappropriation of non-photographic elements of her likeness and identity, Plaintiff has asserted rights that are not equivalent to the rights of copyright holders," writes Gilliam. Further, the court finds the alleged removal of monetized links from Batra's instagram is sufficient to maintain a claim for contract interference and unfair competition.

Gilliam also found Batra has plausibly alleged facts to support her copyright infringement claims, although the court notes that she will have to establish copyright registration dates in order to survive summary judgment and to serve as a class representative.     

Read the full decision below.