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Case 2:19-cv-04034-JMY Document 47-1 Filed 02/10/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF PHILADELPHIA

KAREN HEPP, §
§
Plaintiff, §
§
v. § Civil Action No. 19-cv-4034-JMY
§
FACEBOOK, INC., ET AL., §
§
Defendants. §

DEFENDANT FACEBOOK, INC.’S MEMORANDUM


OF LAW IN SUPPORT OF ITS MOTION TO DISMISS
Case 2:19-cv-04034-JMY Document 47-1 Filed 02/10/20 Page 2 of 21

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

SUMMARY OF PLAINTIFF’S ALLEGATIONS .........................................................................2

ARGUMENT ...................................................................................................................................3

I. Applicable Standard of Review ...............................................................................3

II. Facebook Is Immune From Liability For Hosting Content Provided by


Third Parties. ............................................................................................................3

A. Plaintiff’s Right of Publicity Claims Are Barred By the CDA. ...................5

B. Facebook Meets the Criteria for CDA Immunity. .......................................7

1. Facebook is an Interactive Computer Service. ................................7

2. Plaintiff Does Not Allege That Facebook is the Content


Provider. ..........................................................................................8

3. Plaintiff’s Claims Treat Facebook as a Publisher or


Speaker. ..........................................................................................10

III. Even Absent Application of the CDA, Facebook Is Immune from


Liability for Plaintiff’s Statutory Right of Publicity Claim. ..................................11

IV. Plaintiff Fails to Allege Facts Sufficient to Sustain Her Common Law
Right of Publicity Claim. .......................................................................................12

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TABLE OF AUTHORITIES

Cases

AFL Phila. LLC v. Krause,


639 F. Supp. 2d 512 (E.D. Pa. 2009) ........................................................................................ 13

Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................................................ 3, 4

Bell Atl. Corp. v. Twombly,


550 U.S. 544 (2007) .............................................................................................................. 3, 14

Brennerman v. Guardian News & Media Ltd.,


No. 14-188-SLR/SRF, 2016 WL 1271461 (D. Del. Mar. 30, 2016) ........................................ 10

Cabaniss v. Hipsley,
151 S.E.2d 496 (Ga. Ct. App. 1966) ......................................................................................... 14

Caraccioli v. Facebook, Inc.,


167 F. Supp. 3d 1056 (N.D. Cal. 2016)
aff’d, 700 F. App’x 588 (9th Cir. 2017) ),
cert. denied, 138 S. Ct. 1027 (2018),
and reh’g denied, 138 S. Ct. 2021 (2018) .................................................................................. 6

Carafano v. Metrosplash.com, Inc.,


339 F.3d 1119 (9th Cir. 2003) .................................................................................................... 6

Delfino v. Agilent Techs., Inc.,


52 Cal. Rptr. 3d 376 (Cal. Ct. App. 2006) .................................................................................. 7

Dimeo v. Max,
433 F. Supp. 2d 523 (E.D. Pa. 2006)
aff’d, 248 F. App’x 280 (3d. Cir. 2007) .......................................................................... 4, 5, 8, 9

Doe v. MySpace, Inc.,


528 F.3d 413 (5th Cir. 2008),
cert. denied, 555 U.S. 1031 (2008) ............................................................................................. 8

Evancho v. Fisher,
423 F.3d 347 (3d Cir. 2005) ....................................................................................................... 3

Evans v. Wurkin Stiffs, Inc.,


No. 15-61934-CIV, 2016 WL 8793339 (S.D. Fla. Mar., 21, 2016) ................................... 11, 12

Faegre & Benson, LLP v. Purdy,


367 F. Supp. 2d 1238 (D. Minn. 2005) ....................................................................................... 6

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Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC,


521 F.3d 1157 (9th Cir. 2008) .................................................................................................... 5

Gabriel v. Giant Eagle, Inc.,


124 F. Supp. 3d 550 (W.D. Pa. 2015) ....................................................................................... 14

GoDaddy.com, LLC v. Toups,


429 S.W.3d 752 (Tex. App. 2014) .............................................................................................. 6

Green v. Am. Online (AOL),


318 F.3d 465 (3d Cir. 2003) ............................................................................................. 5, 8, 10

Inman v. Technicolor USA, Inc.,


No. 11-666, 2011 WL 5829024 (W.D. Pa. Nov. 18, 2011) ...................................................... 11

Jurin v. Google Inc.,


695 F. Supp. 2d 1117 (E.D. Cal. 2010) .................................................................................... 11

Kabbaj v. Google, Inc.,


No. CV 13-1522-RGA, 2014 WL 1369864 (D. Del. Apr. 7, 2014)
aff'd, 592 F. App’x 74 (3d Cir. 2015) ......................................................................................... 9

Kimzey v. Yelp! Inc.,


836 F.3d 1263 (9th Cir. 2016) .................................................................................................. 11

La’Tiejira v. Facebook, Inc.,


272 F. Supp. 3d 981, 993 (S.D. Tex. 2017),
appeal dismissed, No. 17-20565, 2018 WL 1224417 (5th Cir. Feb 15, 2018) ........................... 8

Mmubango v. Google, Inc.,


No. 12-1300, 2013 WL 664231 (E.D. Pa. Feb. 22, 2013) .......................................................... 9

Newcombe v. Adolf Coors Co.,


157 F.3d 686 (9th Cir. 1998) .................................................................................................... 15

Parker v. Google, Inc.,


422 F. Supp. 2d 492 (E.D. Pa. 2006) ...................................................................................... 5, 9

Parker v. Paypal,
No. 16-4786, 2017 WL 3508759 (E.D. Pa. Aug. 16, 2017) ....................................................... 6

Perfect 10, Inc. v. CCBill LLC,


488 F.3d 1102 (9th Cir. 2007) .................................................................................................... 7

Sahoury v. Meredith Corp.,


No. 11-5180 (KSH), 2012 WL 3185964 (D.N.J. Aug. 2, 2012) .............................................. 14

Saliba v. Att’y Gen. of U.S.,

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828 F.3d 182 (3d Cir. 2016) ....................................................................................................... 4

Saponaro v. Grindr, LLC,


93 F. Supp. 3d 319 (D.N.J. 2015) ............................................................................................... 4

Scott v. Moon,
No. 2:19CV5, 2019 WL 332415 (W.D. Va. Jan. 24, 2019)
aff’d, 773 F. App’x 138 (4th Cir. 2019),
cert. denied, No. 19-5720, 2019 WL 5686543 (U.S. Nov. 4, 2019) .......................................... 6

Shulman v. Facebook.com,
No. 17-764 (JMV) (LDW), 2018 WL 3344236 (D.N.J. July 9, 2018),
aff’d sub nom., Shulman v. Facebook.com (Inc.), 788 F. App’x 882 (3d Cir. 2019) ................. 8

Worthy v. Carroll,
No. 02-6882, 2003 WL 25706359 (E.D. Pa. July 16, 2003) .................................................... 14

Zeran v. Am. Online, Inc.,


129 F.3d 327 (4th Cir. 1997) .......................................................................................... 5, 10, 11

Statutes

42 Pa. Cons. Stat. § 8316(a) .......................................................................................................... 11

42 Pa. Cons. Stat. § 8316(d) ............................................................................................... 1, 11, 12

42 Pa. Cons. Stat. § 8316(d)(2) ....................................................................................................... 1

47 U.S.C. § 230 ...................................................................................................................... passim

47 U.S.C. § 230(b)(2) ..................................................................................................................... 7

47 U.S.C. § 230(c) ...................................................................................................................... 4, 6

47 U.S.C. § 230(c)(1) .................................................................................................................. 5, 8

47 U.S.C. § 230(e) .......................................................................................................................... 5

47 U.S.C. § 230(e)(1) ...................................................................................................................... 5

47 U.S.C. § 230(e)(2) ...................................................................................................................... 5

47 U.S.C. § 230(e)(3) .................................................................................................................. 5, 6

47 U.S.C. § 230(e)(4) ...................................................................................................................... 6

47 U.S.C. § 230(e)(5) ...................................................................................................................... 6

47 U.S.C. § 230(f)(2) ...................................................................................................................... 8

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47 U.S.C. § 230(f)(3) ...................................................................................................................... 9

Restatement (Second) of Torts § 652C ......................................................................................... 13

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INTRODUCTION

Defendant Facebook Inc. (“Facebook”) operates free online and mobile social

networking services that provide billions of users a platform on which to share photos, videos,

messages, and links to other content. In addition to allowing users to post and discover content,

Facebook allows third parties to create and post advertisements about their products and services

on the Facebook platform.

Plaintiff Karen Hepp (“Plaintiff” or “Hepp”) brings this right of publicity suit against

Defendant Facebook based on the inclusion of her photograph in an advertisement for the

FirstMet dating app, which she alleges appeared on the Facebook platform. Plaintiff did not

allege that Facebook created or authored the advertisement, nor could she. The advertisement

promotes FirstMet – not Facebook; and the face of the advertisement displays the notation

“Sponsored,” indicating that it is a third party’s ad. Notably, Plaintiff has not asserted any claims

against FirstMet, the entity whose services were promoted using her image. Instead, she has

focused her claims only on Facebook and other well-known social media platforms.

Plaintiff asserts two claims against Facebook: (1) violation of her statutory right of

publicity under 42 Pa. Cons. Stat. § 8316(d) and (2) violation of her common-law right of

publicity. Each of Plaintiff’s claims against Facebook are misdirected and based on untenable

legal theories attempting to hold online and mobile platforms liable for the actions of third-party

advertisers. Accordingly, this Court should dismiss Plaintiff’s claims against Facebook for at

least the following reasons:

1. Facebook 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);

2. Facebook is immune from liability under Pennsylvania’s right of publicity


statute; and

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3. Plaintiff fails to allege facts that constitute an actionable violation of her


common-law publicity rights.

Moreover, Plaintiff’s claims should be dismissed with prejudice because she cannot amend her

Complaint to overcome the legal flaws and pleading deficiencies that are fatal to her claims.

SUMMARY OF PLAINTIFF’S ALLEGATIONS

Defendant Facebook owns and operates Facebook.com, a well-known social media

internet site. See Complaint ¶ 8. As is common with social media sites, Facebook permits its

users to post and share messages, photos, and content on its platform. Facebook also allows

third-party businesses to create, post, and share sponsored advertisements that promote their

products and services on the Facebook platform. See e.g., Id., Ex. B.

Plaintiff alleges that she is currently a television news anchor in Philadelphia. Id. ¶ 18.

According to Plaintiff, approximately two years ago, she discovered that her photograph was

being used by third parties in online advertisements without her consent. Id. ¶ 24. After seeing

the photograph in advertisements, Plaintiff concluded that it was taken by a security camera in a

New York City convenience store without her knowledge. Id. ¶¶ 24–25, Ex. A.

Plaintiff alleges that her photograph was featured in an advertisement promoting

FirstMet’s dating app that appeared on the Facebook platform. Id. ¶ 27, Ex. B. In the FirstMet

ad, Plaintiff’s image is shown alongside another unidentified woman. Id. The advertisement

includes the term “Sponsored” in the upper left corner, referencing the fact that the ads shown

were sponsored by the entities promoting their services. A copy of the advertisement is attached

to the Complaint and reproduced below:

On September 4, 2019, Plaintiff filed her Complaint against Facebook, but not FirstMet,

alleging that Facebook violated her statutory and common-law publicity rights by the inclusion

of her photograph in the FirstMet advertisement promoting its dating app. Complaint ¶ 27, Ex. B.

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Plaintiff seeks an injunction and monetary relief including “actual damages, reputational

damages, and/or Defendants’ profits in an amount in excess of $10,000,000.” Id., Prayer for

Relief ¶ 4.

ARGUMENT

I. Applicable Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), the factual allegations of a complaint

“must be enough to raise a right to relief above the speculative level” and the plaintiff must offer

more than a “formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007).

In evaluating the sufficiency of a claim, courts “first . . . tak[e] note of the elements a

plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Courts then

identify the allegations that, “because they are no more than conclusions, are not entitled to the

assumption of truth.” Id. at 679; see also Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005)

(“[A] court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a complaint when

deciding a motion to dismiss.” (citation omitted)). Finally, courts “assume the[] veracity [of well-

pleaded factual allegations] and then determine whether they plausibly give rise to an entitlement

to relief.” Iqbal, 556 U.S. at 679.

In ruling on a Rule 12(b)(6) motion to dismiss, courts “consider only the complaint,

exhibits attached to the complaint, matters of public record, as well as undisputedly authentic

documents if the complainant’s claims are based upon these documents.” Saliba v. Att’y Gen. of

U.S., 828 F.3d 182, 189 (3d Cir. 2016) (citation omitted).

II. Facebook Is Immune From Liability For Hosting Content Provided by Third
Parties.

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Plaintiff’s statutory and common-law publicity claims are barred by the Communications

Decency Act, 47 U.S.C. § 230 (the “CDA”). Congress enacted § 230 of the CDA to protect

freedom of expression and innovation on the internet by broadly immunizing website operators

from liability for hosting third-party content. Dimeo v. Max, 433 F. Supp. 2d 523, 528 (E.D. Pa.

2006) aff’d, 248 F. App’x 280 (3d. Cir. 2007). . Without this immunity, websites, including

social media networks, would face a dilemma of choosing between either overly policing content

or removing the ability of users to exchange content and ideas. See Saponaro v. Grindr, LLC, 93

F. Supp. 3d 319, 325 (D.N.J. 2015) (“[I]f social network hosts are faced with liability every time

third-party communications . . . result in harm, they are left with two extreme courses of action

. . . either over-police their networks . . . or[] strip users of the ability to post communications.”).

The CDA promotes and protects internet speech by immunizing internet service

providers like Facebook from liability based on third-party content that appears on their

platforms. Specifically, § 230(c) of the CDA provides, in relevant part, “[n]o provider or user of

an interactive computer service shall be treated as the publisher or speaker of any information

provided by another information content provider.” 47 U.S.C. § 230(c)(1). The CDA further

provides that “[n]o cause of action may be brought and no liability may be imposed under any

State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). In enacting the

CDA, Congress confirmed that state law claims, whether grounded in statute or common law, are

barred where the defendant qualifies for CDA immunity. Dimeo, 433 F. Supp. 2d at 528 (noting

that the CDA overrides the traditional treatment of publishers under statutory and common law);

see also Zeran v. Am. Online, Inc., 129 F.3d 327, 333 (4th Cir. 1997) (noting that § 230(e) of the

CDA “counteracts the caution counseled by the [statutory] interpretive canon favoring retention

of common law principles”).

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The broad immunity afforded by the CDA is not merely an affirmative defense. Rather, it

provides robust statutory immunity from suit in the first instance. Green v. Am. Online (AOL),

318 F.3d 465, 471 (3d Cir. 2003) (noting that § 230 “‘precludes courts from entertaining claims

that would place a computer service provider in a publisher’s role,’ and therefore bars lawsuits

seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial

function” (citation omitted)); Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 n.6 (E.D. Pa.

2006); see also Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d

1157, 1175 (9th Cir. 2008) (construing CDA immunity broadly to protect websites not merely

from ultimate liability, but from having to fight costly and protracted legal battles). Thus,

dismissal of claims at the pleading stage is warranted when a defendant qualifies for immunity

from liability under the CDA.

A. Plaintiff’s Right of Publicity Claims Are Barred By the CDA.

The immunity provided by § 230 of the CDA is subject to five exceptions: (1) for

enforcement of any “Federal criminal statute,” 47 U.S.C. § 230(e)(1); (2) for claims under laws

“pertaining to intellectual property,” id. § 230(e)(2); (3) for claims under state laws that are

consistent with the CDA, id. § 230(e)(3); (4) for claims under communications privacy laws, id.

§ 230(e)(4); and (5) for claims related to sex trafficking, id. § 230(e)(5). None of these

exceptions to CDA immunity apply to Plaintiff’s right of publicity claims.

Indeed, this Court has held that CDA immunity applies to right of publicity claims. In

Parker v. Paypal, the plaintiff asserted right of publicity and right of privacy claims against

defendants who purportedly used his name and likeness on their online platforms to sell

infringing copies of a book. No. 16-4786, 2017 WL 3508759 (E.D. Pa. Aug. 16, 2017). Relying

on the CDA, this Court found plaintiff’s “state law claims [] clearly preempted and prohibited by

§ 230 [of the CDA].” Id. at *7.

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While the Third Circuit has yet to confirm that the CDA is applicable to right of publicity

claims, the holding in Paypal is supported by courts in other jurisdictions, including the Fourth

and Ninth Circuits. See, e.g., Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir.

2003) (affirming judgment for defendant and holding that § 230 of the CDA barred publicity

claims); Scott v. Moon, No. 2:19CV5, 2019 WL 332415, at *3 (W.D. Va. Jan. 24, 2019) (holding

that under § 230 of the CDA, plaintiff’s allegations of appropriation of name and likeness fail to

state claims), aff’d, 773 F. App’x 138 (4th Cir. 2019), cert. denied, No. 19-5720, 2019 WL

5686543 (U.S. Nov. 4, 2019); Caraccioli v. Facebook, Inc., 167 F. Supp. 3d 1056, 1067 (N.D.

Cal. 2016) (denying leave to amend pleading to add a right of publicity claim because it would

be barred by § 230(c) of the CDA), aff’d, 700 F. App’x 588 (9th Cir. 2017) ), cert. denied, 138 S.

Ct. 1027 (2018), and reh’g denied, 138 S. Ct. 2021 (2018); Faegre & Benson, LLP v. Purdy, 367

F. Supp. 2d 1238, 1249 (D. Minn. 2005) (“[Defendant] is immune [under the CDA] from . . .

appropriation [of name or likeness] claims” arising from third-party content); GoDaddy.com,

LLC v. Toups, 429 S.W.3d 752, 753 (Tex. App. 2014) (applying § 230 of the CDA, reversing the

trial court, and directing judgment for defendant as to plaintiffs’ claims for wrongful

appropriation of their names and likenesses); Delfino v. Agilent Techs., Inc., 52 Cal. Rptr. 3d

376, 390 (Cal. Ct. App. 2006) (concluding that CDA immunity has been applied to right of

publicity claims after surveying cases).

Even if plaintiff attempts to characterize her right of publicity claims as “intellectual

property” claims under Pennsylvania law, § 230 of the CDA preempts state intellectual property

claims seeking to hold online service providers liable for content provided by third parties.

Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007). In Perfect 10, the Ninth

Circuit directly addressed whether a state law right of publicity claim was “pertaining to

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intellectual property” for purposes of CDA immunity. The court construed “intellectual

property” in the CDA to mean “federal intellectual property.” Id. In reaching that conclusion, the

Ninth Circuit reasoned:

While the scope of federal intellectual property law is relatively well-


established, state laws protecting ‘intellectual property,’ however defined,
are by no means uniform. Such laws may bear various names, provide for
varying causes of action and remedies, and have varying purposes and
policy goals. Because material on a website may be viewed across the
Internet, and thus in more than one state at a time, permitting the reach of
any particular state’s definition of intellectual property to dictate the
contours of this federal immunity would be contrary to Congress’s
expressed goal of insulating the development of the Internet from the
various state law regimes.

Id. at 1118. Allowing a state law right of publicity claim to circumvent the protection of the

CDA would contradict the “the policy of the United States . . . to preserve the vibrant and

competitive free market that presently exists for the Internet … unfettered by…State

regulation.” 47 U.S.C. § 230(b)(2).

This Court should follow its previous decision and the decisions of other courts that CDA

immunity applies to right of publicity claims.

B. Facebook Meets the Criteria for CDA Immunity.

Facebook is entitled to CDA immunity because (1) it is an interactive computer service,

(2) the offending content was provided by another information content provider, and (3)

Plaintiff’s claims treat Facebook as the publisher or speaker of the offending content. See 47

U.S.C. § 230(c)(1); see also Dimeo, 433 F. Supp. 2d at 529.

1. Facebook is an Interactive Computer Service.

The CDA defines an “interactive computer service” as “any information service, system,

or access software provider that provides or enables computer access by multiple users to a

computer server.” 47 U.S.C. § 230(f)(2). Facebook falls squarely within that definition as the

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provider of a social media internet platform, which allows people to access its computer servers

for the purposes of posting and sharing photos, messages, and content. See Complaint ¶ 8

(describing Facebook as a “social media internet site[]”).

There is broad precedent that social media platforms like Facebook are interactive

computer services under the CDA. See, e.g., Green, 318 F.3d at 471 (finding AOL entitled to

CDA immunity as an interactive computer service for messages transmitted through its service);

Doe v. MySpace, Inc., 528 F.3d 413, 415 (5th Cir. 2008), cert. denied, 555 U.S. 1031 (2008)

(finding the MySpace social network entitled to CDA immunity as an interactive computer

service).

Unsurprisingly, courts, including at least one in the Third Circuit, have specifically

concluded that Facebook is an interactive computer service under the CDA. See, e.g., Shulman v.

Facebook.com, No. 17-764 (JMV) (LDW), 2018 WL 3344236, at *7 (D.N.J. July 9, 2018), aff’d

sub nom., Shulman v. Facebook.com (Inc.), 788 F. App’x 882 (3d Cir. 2019); La’Tiejira v.

Facebook, Inc., 272 F. Supp. 3d 981, 993 (S.D. Tex. 2017), appeal dismissed, No. 17-20565,

2018 WL 1224417 (5th Cir. Feb 15, 2018); Caraccioli, 167 F. Supp. 3d at 1065.

2. Plaintiff Does Not Allege That Facebook is the Content Provider.

Under § 230(f)(3) of the CDA, an “‘information content provider’ means any person or

entity that is responsible . . . for the creation or development of information provided through the

Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). Defendants who are

not content providers within the meaning of § 230(f)(3) are immune from liability that is based

on the publication of third-party content.

Third Circuit courts, including this Court, have applied § 230(f)(3) of the CDA to hold

that defendants who neither “create [n]or author the [content] in controversy, but rather [are]

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provided that [content] by a third-party . . . cannot be held liable.” Mmubango v. Google, Inc.,

No. 12-1300, 2013 WL 664231, at *2 (E.D. Pa. Feb. 22, 2013); Dimeo, 433 F. Supp. 2d at 530

(dismissing with prejudice plaintiff’s suit on CDA grounds where defendant did not create the

anonymous posts, which were authored by third parties); Kabbaj v. Google, Inc., No. CV 13-

1522-RGA, 2014 WL 1369864, at *3 (D. Del. Apr. 7, 2014), aff'd, 592 F. App’x 74 (3d Cir.

2015) (dismissing plaintiff’s claim with prejudice where the defendants merely hosted, but did

not create or author the third-party content at issue); Parker v. Google Inc., 422 F. Supp. 2d 492

at 500–501 (dismissing plaintiff’s claims against Google, which attempt to hold Google

accountable for the tortious acts of third parties).

Here, Plaintiff does not allege that Facebook created or authored the advertisement

containing her image. This glaring omission alone is fatal to Plaintiff’s claims against Facebook.

See Kabbaj, 2014 WL 1369864, at *3 (dismissing with prejudice plaintiff’s claims because he

failed to allege that any defendant created or authored the offending content).

Moreover, the advertisement itself belies any allegation that Facebook created it.

Brennerman v. Guardian News & Media Ltd., No. 14-188-SLR/SRF, 2016 WL 1271461, at *1

(D. Del. Mar. 30, 2016) (dismissing claims on § 230 grounds, refusing to credit plaintiff’s

allegations that a defendant published various materials because “the actual exhibits attached to

the complaint indicate otherwise” (emphasis added)). Exhibit B to the Complaint shows the

advertisement in its entirety and the only reasonable inference that can be drawn from it is that

Facebook did not create it:

• The advertisement is identified as a “Sponsored” ad, which by definition is


an advertisement placed on the platform to promote the entity featured in
the ad;

• The advertisement promotes FirstMet’s dating services—not Facebook;


and

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• The advertisement includes a “Create Ad” link in the upper right corner
inviting users to create their own ads. See Complaint, Ex. B.

Plaintiff fails to allege, and nothing in her Complaint infers, that Facebook did anything

more than allow the advertisement at issue to be posted on its platform.

3. Plaintiff’s Claims Treat Facebook as a Publisher or Speaker.

A plaintiff’s claim treats a defendant as a publisher if the cause of action pertains to the

exercise of traditional editorial functions, such as deciding whether to publish content. Zeran,

129 F.3d at 330. In other words, CDA immunity attaches when the plaintiff’s fundamental tort

claim is that the defendant published the allegedly harmful content provided by third parties.

Green, 318 F.3d at 471.

Plaintiff’s sole allegation directed to Facebook is that the photograph is featured in a

“Facebook advertisement”. Complaint ¶ 27. As explained above, the only reasonable

interpretation of “Facebook advertisement” is that the advertisement at issue appeared on the

Facebook platform. Plaintiff does not allege, and the advertisement contradicts any assertion,

that Facebook did anything other than allow the ad to be posted on the Facebook platform.

Facebook’s decision to allow the advertisement on its platform is a quintessential internet

service provider function, which is the very activity the CDA is aimed to protect. See Inman v.

Technicolor USA, Inc., No. 11-666, 2011 WL 5829024, at *7 (W.D. Pa. Nov. 18, 2011)

(explaining that CDA immunity bars claims arising from “the dissemination of a third party’s

content” (citation omitted)); see also Kimzey v. Yelp! Inc., 836 F.3d 1263, 1269–71 (9th Cir.

2016) (finding that defendant was not liable under § 230 for “‘republishing’ . . .

advertisements”); Zeran v. Am. Online, Inc., 958 F. Supp. 1124, 1137 (E.D. Va. 1997) (finding

that § 230 preempted claim relating to third-party advertising); Jurin v. Google Inc., 695 F. Supp.

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2d 1117, 1123 (E.D. Cal. 2010) (noting that CDA immunity applied where defendant only

provided a space and a service for third party advertisements).

Facebook satisfies each of the three elements of § 230 of the CDA. Thus, it is immune

from liability for Plaintiff’s right of publicity claims, and the Motion to Dismiss should be

granted.

III. Even Absent Application of the CDA, Facebook Is Immune from Liability for
Plaintiff’s Statutory Right of Publicity Claim.

Pennsylvania’s statutory right of publicity law provides, “[a]ny natural person whose

name or likeness has commercial value and is used for any commercial or advertising purpose

without the written consent of such natural person . . . may bring an action.” 42 Pa. Cons. Stat.

§ 8316(a) (the “Pennsylvania Act”). The Pennsylvania Act, however, is not absolute; it

“immuni[zes]” defendants from liability if they: (1) are “in the business of . . . disseminating

material for commercial or advertising purposes;” and (2) lacked “actual knowledge of the

unauthorized use of the name or likeness of a [plaintiff].” 42 Pa. Cons. Stat. § 8316(d).

At least one court has interpreted the Pennsylvania Act’s immunity provision in a case

with allegations analogous to those presented here. In Evans v. Wurkin Stiffs, Inc., Amazon,

Macy’s, and Nordstrom advertised on their websites the sale of a third-party product that

allegedly violated the plaintiff’s right of publicity. No. 15-61934-CIV, 2016 WL 8793339, at *8

(S.D. Fla. Mar., 21, 2016). The court dismissed plaintiff’s publicity claim finding that the

defendants were squarely within the scope of § 8316(d) by disseminating the advertisement at

issue for commercial or advertising purposes without actual knowledge that plaintiff’s name was

used in the advertisement without consent. Id. at *8.

Facebook, like the defendants in Evans, only disseminated the content at issue for

advertising purposes—to advertise the services of FirstMet. See Complaint, Ex. B (showing the

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Case 2:19-cv-04034-JMY Document 47-1 Filed 02/10/20 Page 18 of 21

advertisement at issue promotes the services of FirstMet). Thus, Facebook meets the first

element for immunity under the Pennsylvania Act.

The second element for immunity under the Pennsylvania Act is also met because

Plaintiff fails to allege that Facebook had actual knowledge that her photo was used in the

advertisement without her consent. Indeed, the only allegation regarding Facebook’s

“knowledge” is that it “knew, based upon [Plaintiff’s] notoriety, that the Photo depicted [her] and

no one else.” See Complaint at ¶ 37. This allegation is woefully inadequate to extinguish the

protection afforded to Facebook under the Pennsylvania Act. While this allegation is itself

disputable, even taken as true it is insufficient under the statute. Mere knowledge of the

Plaintiff’s notoriety does not establish that Facebook knew that the photo was used without

Plaintiff’s consent. Evans, 2016 WL 8793339 *8 (finding that despite the notoriety of the

Chubby Checker stage name, plaintiff had not alleged facts to support that defendants had actual

knowledge that plaintiff’s name was used without consent). Plaintiff has failed to allege any facts

that would suggest otherwise.

Because Facebook has met each of the elements for immunity under the Pennsylvania

Act, Plaintiff’s statutory right of publicity claim should be dismissed.

IV. Plaintiff Fails to Allege Facts Sufficient to Sustain Her Common Law Right of
Publicity Claim.

Pennsylvania courts refer to the Restatement (Second) of Torts § 652C (“Section 652C”)

to define the common law right of publicity. See AFL Phila. LLC v. Krause, 639 F. Supp. 2d

512, 530 (E.D. Pa. 2009) (noting that Pennsylvania courts rely on the Restatement (Second) of

Torts definition of privacy torts when analyzing right of publicity). Section 652C provides that

“[o]ne who appropriates to h[er] own use or benefit the name or likeness of another is subject to

liability . . . for invasion of . . . privacy.” Restatement (Second) of Torts § 652C, cmt. d (1977).

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Case 2:19-cv-04034-JMY Document 47-1 Filed 02/10/20 Page 19 of 21

The Restatement and courts interpreting it, require that the plaintiff allege some benefit from the

“use” of her name or likeness that is not merely incidental. Id. Similar to the statutory immunity

provision, a publisher that merely distributes an advertisement that allegedly violates a right of

publicity, is only a passive actor and cannot incur liability. Comment d to the Restatement

(Second) of Torts § 652C, explains “incidental” use as follows:

The fact that the defendant is engaged in the business of publication, for
example of a newspaper, out of which he makes or seeks to make a profit,
is not enough to make the incidental publication a commercial use of the
name or likeness. Thus a newspaper, although it is not a philanthropic
institution, does not become liable under the rule stated in this Section to
every person whose name or likeness it publishes.

Plaintiff’s common law right of publicity claim fails as a matter of law. First, her

allegations are nothing more than legal conclusions devoid of factual support. Second, the factual

allegations, including the advertisement at issue, show that Facebook is, at most, a distributor of

third-party content and any use of Plaintiff’s likeness was not for its own benefit.

To state a claim for a violation of her common law right of publicity, Plaintiff is required

to plead facts sufficient to support a plausible inference that Facebook expressly used her

likeness to exploit her reputation for its own benefit. Worthy v. Carroll, No. 02-6882, 2003 WL

25706359, at *4 (E.D. Pa. July 16, 2003). Labels and conclusions and “a formulaic recitation of

the elements of a cause of action will not do.” Gabriel v. Giant Eagle, Inc., 124 F. Supp. 3d 550,

559 (W.D. Pa. 2015) (quoting Bell Atl. Corp., 550 U.S. at 555).

Plaintiff alleges generally that Facebook, among other defendants: (1) “appropriated [her]

likeness, which has commercial value, and used same for commercial purposes”; and (2)

“appropriated [her] valuable likeness . . . and used it to [its] commercial advantage.” Complaint

¶¶ 36, 44. These threadbare pleadings are precisely the sort of conclusory allegations that courts

have rejected as insufficient because they do not plausibly support the inference that Facebook

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Case 2:19-cv-04034-JMY Document 47-1 Filed 02/10/20 Page 20 of 21

was trying to benefit from Plaintiff’s reputation. See, e.g., Gabriel, 124 F. Supp. 3d at 572–73

(dismissing with prejudice publicity claim because “it [wa]s clear that there [we]re no facts

supporting the contention that Plaintiff’s name had any particular value” to the defendants);

Sahoury v. Meredith Corp., No. 11-5180 (KSH), 2012 WL 3185964, at *8–10 (D.N.J. Aug. 2,

2012) (“Because the complaint states only a legal conclusion—that defendants used their names

and likeness ‘for trade purposes’—the misappropriation claim fails.”).

Cabaniss v. Hipsley is instructive, as the court held that a magazine publisher was not

liable for infringing plaintiff’s publicity rights by distributing an advertisement created by

another party. 151 S.E.2d 496, 506 (Ga. Ct. App. 1966). The court reasoned that: (1) the

publisher’s “participation was merely passive” and the magazine was “merely the conduit”

through which the advertisement appeared; and (2) any “appropriation . . . did not inure to [the

publisher’s] benefit . . . but to that of his advertiser.” Id.

Facebook, like the defendant in Cabaniss, was merely a passive distributor of the

advertisement at issue. Nothing in Plaintiff’s Complaint supports an allegation that Facebook

benefited from the use of her image in an advertisement that promoted a third party’s dating app.

See also Newcombe v. Adolf Coors Co., 157 F.3d 686, 693 (9th Cir. 1998) (“use of [plaintiff’s]

likeness” did not “directly benefit[] [defendant magazine publishers] because the benefit they

received—payment for the advertising space—was unrelated to the contents of the

advertisement” (emphasis added)).

Plaintiff’s failure to provide factual support for her common-law right of publicity claim

is fatal and it should be dismissed.

CONCLUSION

Facebook respectfully submits that Plaintiff’s Complaint should be dismissed with

prejudice in its entirety. First, because Plaintiff’s publicity claims are premised on Facebook’s

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Case 2:19-cv-04034-JMY Document 47-1 Filed 02/10/20 Page 21 of 21

alleged promulgation of her photo in a third-party advertisement, § 230 of the CDA bars all of

Plaintiff’s claims and the Pennsylvania Act bars the statutory right of publicity claim. Second,

both of Plaintiff’s publicity claims should be dismissed irrespective of the CDA because

Facebook is immune from liability under the Pennsylvania Act, and the pleadings are insolubly

conclusory and provide no factual support for the underlying claims.

DATED: February 10, 2020 Respectfully Submitted,

By: /s/ Barry L. Cohen


BARRY L. COHEN
Royer Cooper Cohen Braunfeld LLC
101 West Elm Street, Suite 400
Conshohocken, PA 19428
Telephone: (484) 362-2628
Facsimile: (484) 362-2630
bcohen@rccblaw.com

DENNIS L. WILSON (CA Bar No. 155407)


(Admitted Pro Hac Vice)
Kilpatrick Townsend & Stockton LLP
9720 Wilshire Blvd PH
Beverly Hills, CA 90212-2018
Telephone: 310-248-3830
Facsimile: 310-860-0363
DWilson@kilpatricktownsend.com

TYWANDA LORD (GA BAR No. 006848)


(Admitted Pro Hac Vice)
Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street Suite 2800
Atlanta, Georgia 30309
Telephone: 404-815-6500
Facsimile: 404-541-3235
Tlord@kilpatricktownsend.com

ATTORNEYS FOR DEFENDANT


FACEBOOK, INC.

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