12 October 2022CopyrightCatherine Wycherley

TikTok sued by reality star and influencer over scam ads

Bethenny Frankel claims that TikTok infringed her rights of publicity | Complaint holds that the voice and image of Frankel and more than 100 class members are copyright protected.

Reality TV star and influencer Bethenny Frankel is suing TikTok, alleging the video-hosting platform has allowed companies and individuals to use her image and likeness to promote counterfeit goods.

According to Frankel, the founder of lifestyle brand Skinnygirl, the platform failed to police the use of her persona, voice, content and likeness, contributing to TikTok’s advertising revenue.

Rights of publicity

Frankel is claiming that TikTok infringed her rights of publicity and that its actions amounted to unfair competition as consumers were likely to be deceived.

Her complaint forms part of a class action suit filed at the US District Court for the Southern District of New York on Monday, October 10, and represents more than 100 content creators who have allegedly suffered similar infringements on the platform.

“I want to be a voice for change and use my platform to create a shift in the industry,” said Frankel.

She claims that TikTok caused her irreparable harm by trading on the goodwill she had earned by investing substantial effort on her reputation and depriving her of the ability to control it, as well as emotional distress. She alleges that her followers commented that she had “sold out”.

Copyright protection

“As creators, our proprietary content being used illegally and without our approval diminishes our brands and reputations. This practice deceives consumers, and it misrepresents creators,” Frankel said.

The suit claims that the voice and image of Frankel and the class members are property rights, and subject to copyright protection as original works of authorship.

She is seeking compensatory damages and injunctive relief.

The lawsuit argues that TikTok has a duty to protect the personas, voices, content, and likenesses of Frankel and class members from unauthorised use on its platform

It also asks whether TikTok broke the law by allegedly failing to promptly notify Frankel and class members that their personas, voices, content, and likenesses were being used without their consent,

The complaint goes on to suggest that TikTok failed to implement and maintain reasonable procedures and practices to ensure that unauthorised use did not occur and whether this alleged lapse amounts to unfair, unlawful or deceptive practices.

Growing trend

The case has attracted interest from IP lawyers, who predict that it could prompt similar lawsuits against online platforms.

Bruce Siegal, of counsel at Greenspoon Marder, said the lawsuit was part of a growing trend for individuals and brand owners to hold online providers directly liable for infringement.

“Brand owners cannot rely on the belief that their trademark and copyright registrations, and other IP rights, will be respected. Under the current law, enforcement against online providers can be difficult, particularly when compared to traditional infringement hot spots in the brick-and-mortar marketplace,” he explained.

“At this point in time, such online providers are generally protected from liability as long as they adopt and reasonably implement a notice and takedown procedure for IP infringement claims, such as the one operated by TikTok.”

However, added Siegal, unauthorised dealers often simply repost using a different name, and the high volume of user-generated content on e-commerce and social media sites means that notice and takedown procedures are cumbersome and inefficient, and do not create deterrence due to the lack of a financial penalty.

“At this stage, the common theme in the world of online enforcement is volume. Given the ease of use and the accessibility to millions of consumers around the world, addressing these issues can be like a game of ‘whack-a-mole’,” said Siegal.

Scope of liability

The case is noteworthy given the US Supreme Court’s recent decision to consider the scope of liability under Section 230, according to Matt Savare, a partner at Lowenstein Sandler.

Under this law, online platforms are not considered publishers—and therefore not liable for content posted by users.

“TikTok will almost certainly argue that Section 230 shields it from liability, but that defence may not be availing, as at least one Circuit Court (the Third Circuit) has held that Section 230 does not provide immunity to state right of publicity claims, see Hepp v Facebook,” he said.

“TikTok will also likely argue that the ads in which Frankel was depicted were not created by TikTok and thus it cannot be liable for violating her publicity rights. It is interesting that Frankel did not allege some form of indirect liability, such as contributory infringement. In light of the Supreme Court’s decision to rule on the scope of 230 immunity, this will be an interesting case to follow.”

WIPR has approached both parties for comment.

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