Facebook, Reddit and Giphy all moved to dismiss a Philadelphia-area news anchor’s $10 million right of publicity lawsuit on Monday, saying they are immune from liability and that her lawsuit failed to state a claim.
Karen Hepp, a longtime anchor on Fox 29’s Good Day Philadelphia, alleged in Sept. 2019 that the defendants we just named, plus a porn company, unlawfully used a sexualized image of her. Hepp said that the image was used without authorization, including in dating and erectile dysfunction ads; the “unlawful dissemination and publication of her image on various commercial websites” has caused “irreparable harm,” she said.
Facebook argued: that it is “immune from liability for each of Plaintiff’s right of publicity claims under the Communications Decency Act of 1996 (47 U.S.C. § 230)” because third parties posted the content in question; that it is “immune from liability under Pennsylvania’s right of publicity statute”; that Hepp “fail[ed] to allege facts that constitute an actionable violation of her common-law publicity rights.”
Reddit said the U.S. District Court for the Eastern District of Pennsylvania lacks jurisdiction, and that Hepp failed to state a claim upon which relief can be granted. Like Facebook, Reddit said it was immune from the claims because of the Communications Decency Act (CDA).
Giphy said it has immunity through the CDA, that Hepp failed to state a claim, and that the Court was an improper venue for the lawsuit.
The facts of the case state that Hepp found out from her co-workers two years ago that a photo of her was being used in online ads for dating sites and erectile dysfunction. Hepp learned that the photo was taken by a security camera at a New York City convenience store, but did not know where or how this had occurred.
Her lawsuit called that the “sexualization” of Hepp’s image and “use for prurient and illicit purposes is abhorrent and disgusting,” to the point that this has caused “serious, permanent and irreparable harm” to Hepp’s reputation.
The lawsuit included multiple exhibits showing the offending image and how it was used online. On a porn site, the image was included among a “MILF gallery” (“Mom I’d Like to…).
The image was used and altered on the GIF site Giphy, the lawsuit said, to show a man “hiding behind a glass commercial freezer door and masturbating — to what would appear, from his perspective, to be the backside of Plaintiff.” The “man” was actually an infamous GIF of the Texas Tech bell ringer.
An “NSFW” (not safe for work) Imgur image was posted on the Reddit subreddit r/osbf (“older but still f—able”).
The Imgur image was titled “MILF.”
There was also an image of Hepp in a Facebook-based “Meet Your Girlfriend” sponsored ad.
Hepp initially sought a jury trial, a preliminary and permanent injunction, requiring the defendants to “immediately” remove her image from their sites, an “accounting of any and all revenue” (profit) the defendants gained from use of the image in question, and damages in excess of $10,000,000.
The defendants now move to have this lawsuit thrown out.
Philadelphia Magazine noted that Facebook did make a concession in its filing:
But, concedes that same motion, the applicability of the CDA to right of publicity claims has never actually been tested in the Third Circuit, the federal court jurisdiction that includes Pennsylvania. Some other jurisdictions have upheld that the CDA shields Internet companies from such claims; this jurisdiction has not.
The news outlet caught up with Hepp’s lawyer Samuel Fineman. He told them that despite motion to dismiss, there really is a case to be made here.
“Facebook is saying in its motion that the court needs to look at these other cases in other jurisdictions and say that the same law should apply here,” Fineman said. “But a lot of the claims that they’re talking about involved laypeople like you and me. This is a true right of publicity claim from an actually famous person who has built her reputation and has a palpable monetized value for her image and her brand. Facebook is trying to conflate her case with other cases and attempting to nullify a state law.”
You can read all three motions to dismiss below.
[Image via Fox 29 screengrab]