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Case 2:19-cv-04034-JMY Document 45-1 Filed 02/10/20 Page 1 of 25

UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KAREN HEPP, Case No. 2:19-cv-04034

Plaintiff, Hon. John Milton Younge

v.

FACEBOOK, INC., IMGUR, INC.,


REDDIT, INC., GIPHY, INC., WGCZ
S.R.O and DOES 1-10,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF


DEFENDANT GIPHY, INC.’S MOTION TO DISMISS THE COMPLAINT
Case 2:19-cv-04034-JMY Document 45-1 Filed 02/10/20 Page 2 of 25

TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................1

II. BACKGROUND AND RELEVANT ALLEGATIONS .....................................................2

A. Giphy........................................................................................................................2

B. Plaintiff’s Allegations ..............................................................................................3

III. THE COURT SHOULD DISMISS PLAINTIFF’S COMPLAINT BECAUSE


IT LACKS PERSONAL JURISDICTION OVER GIPHY .................................................3

A. Legal Standard .........................................................................................................3

B. This Court Lacks General Jurisdiction Over Giphy ................................................4

C. This Court Lacks Specific Jurisdiction Over Giphy ................................................5

D. The Internet Does Not Create Personal Jurisdiction Over Giphy


Where It Would Not Otherwise Exist ......................................................................7

IV. THE COURT SHOULD DISMISS PLAINTIFF’S COMPLAINT BECAUSE


THIS DISTRICT IS AN IMPROPER VENUE FOR HER CLAIMS .................................9

A. Legal Standard .........................................................................................................9

B. This District Is An Improper Venue Because None Of The Acts Or Omissions


Giving Rise To Plaintiff’s Claims Occurred Here .................................................10

V. THE COURT SHOULD DISMISS PLAINTIFF’S COMPLAINT BECAUSE


IT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED .........10

A. Plaintiff’s Claims Are Barred By Section 230 Of The Federal


Communications Decency Act ..............................................................................10

1. Legal Standard ...........................................................................................11

2. Section 230 Bars State Law Claims Like Plaintiff’s .................................12

B. Plaintiff Otherwise Fails To State A Claim ...........................................................12

1. Legal Standard ...........................................................................................13

2. Plaintiff’s Statutory Claim Fails ................................................................14

a. Giphy Did Not Use Plaintiff’s Likeness For Any Commercial


Or Advertising Purpose, As Required By Statute ..........................14

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b. As A “Communications Medium,” Giphy Is Immune From


§ 8316 Claims Absent “Actual Knowledge” Of
Unauthorized Use...........................................................................16

3. Plaintiff’s Common Law Right of Publicity Claim Fails ..........................17

a. Plaintiff’s Common Law Cause Of Action


Has Been Subsumed By Her Statutory Cause Of Action ..............17

b. Even If Plaintiff’s Common Law Claim Has Not Been


Subsumed, It Fails To Plead Giphy’s Commercial Purpose ..........17

VI. CONCLUSION ..................................................................................................................18

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TABLE OF AUTHORITIES

Cases
Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc.,
751 F.3d 796 (7th Cir. 2014) ...................................................................................................... 8
Arnold v. Irish Bred Pub Concepts Co.,
No. 17-CV-3643, 2018 WL 1960815 (E.D. Pa. Apr. 25, 2018) ................................................. 6
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 13
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................... 13
BNSF Railway Co v. Tyrrell, 137 S. Ct. 1549 (2017)..................................................................... 4
Braham v. Sony/ATV Music Publ’g,
No. 15-CV-8422, 2015 WL 7074571 (C.D. Cal. Nov. 10, 2015) .............................................. 2
Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588 (E.D. Pa. 2010) ............................................. 2
Calder v. Jones, 465 U.S. 783 (1984) ......................................................................................... 6, 7
Chavez v. Dole Food Co., Inc., 836 F.3d 205 (3d Cir. 2016) ......................................................... 4
City of Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872 (3d Cir. 2018) ....... 13
Connelly v. Lane Constr. Corp., 809 F.3d 780 (3d Cir. 2016) ................................................ 13-14
Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291 (3d Cir. 1994) ................................. 9-10
D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94 (3d Cir. 2009) ...... 5-6
Daimler AG v. Bauman, 571 U.S. 117 (2014)). .......................................................................... 4, 5
Diodato v. Wells Fargo Ins. Servs., USA, Inc., 44 F. Supp. 3d 541 (M.D. Pa. 2014), ................. 16
Eagle v. Morgan, No. 11-CV-4303, 2013 WL 943350, (E.D. Pa. Mar. 12, 2013)....................... 16
Evans v. Wurkin Stiffs, Inc.,
No. 15-61934-CIV, 2016 WL 8793339 (S.D. Fla. Mar. 21, 2016) .......................................... 17
Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008) ...................................................... 17
Facenda v. N.F.L. Films, Inc., 488 F. Supp. 2d 491 (E.D. Pa. 2007) ........................................... 17
Fatouros v. Lambrakis, 627 F. App’x 84 (3d Cir. 2015) ................................................................ 8
Gehling v. St. George’s Sch. of Med., 773 F.2d 539 (3d Cir. 1985) ............................................... 3
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011)..................................... 5
Grant Street Group, Inc. v. D & T Ventures, LLC,
No. 10-CV-1095, 2012 WL 13689 (W.D. Pa. Jan. 4, 2012)....................................................... 8
Green v. Am. Online (AOL), 318 F.3d 465 (3d Cir. 2003) ..................................................... 10, 11

iii
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IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998) ........................................................ 6
In re Zostavax (Zoster Vaccine Live) Prod. Liab. Litig.,
358 F. Supp. 3d 418 (E.D. Pa. 2019) .......................................................................................... 4
Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945)........................................................................ 4
James v. City of Wilkes-Barre, 700 F.3d 675 (3d Cir. 2012)........................................................ 13
Kabbaj v. Google Inc., 592 F. App’x 74 (3d Cir. 2015) ............................................................... 11
Loeb v. Bank of Am., 254 F. Supp. 2d 581 (E.D. Pa. 2003).......................................................... 10
Mmubango v. Google, Inc.,
No. 12-CV-1300, 2013 WL 664231 (E.D. Pa. Feb. 22, 2013) ................................................. 12
Molnlycke Health Care AB v. Dumex Med. Surgical Prod. Ltd.,
64 F. Supp. 2d 448 (E.D. Pa. 1999) ............................................................................................ 8
O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312 (3d Cir. 2007) ................................................. 4
Obado v. Magedson, 612 F. App’x 90 (3d Cir. 2015) ............................................................ 11, 18
Obado v. Magedson, No. 13-CV-2382, 2014 WL 3778261 (D.N.J. July 31, 2014) .............. 11, 12
Orazi v. Hilton Hotels Corp.,
No. 09-CV-05959, 2010 WL 4751728 (E.D. Pa. Nov. 22, 2010) .............................................. 8
Parker v. Google, Inc., 242 F. App’x 833 (3d Cir. 2007)............................................................. 11
Parker v. Google, Inc., 422 F. Supp. 2d 492 (E.D. Pa. 2006) ...................................................... 11
Parker v. Paypal, Inc.,
No. 16-CV-4786, 2017 WL 3508759 (E.D. Pa. Aug. 16, 2017) .............................................. 12
Pearce v. Mizuho Bank, Ltd.,
No. 18-CV-306, 2018 WL 4094812 (E.D. Pa. Aug. 27, 2018) .................................................. 9
Philadelphia Orchestra Ass’n v. Walt Disney Co.,
821 F. Supp. 341 (E.D. Pa. 1993) ............................................................................................. 17
Remick v. Manfredy, 238 F.3d 248 (3d Cir. 2001) ..................................................................... 6, 7
Ricoh USA, Inc. v. Bailon, --- F. Supp. 3d ----, ----,
2019 WL 6682144, at *2 (E.D. Pa. Dec. 6, 2019) ............................................................... 13-14
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) ................................................................ 3
Shrader v. Biddinger, 633 F.3d 1235 (10th Cir. 2011) ................................................................... 8
Steak Umm Co., LLC v. Steak ‘Em Up, Inc.,
No. 09-CV-2857, 2011 WL 3679155 (E.D. Pa. Aug. 23, 2011) ................................................ 7

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Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ................................................ 2
The Choice Is Yours, Inc. v. The Choice Is Yours,
No. 14-CV-1804, 2015 WL 5584302 (E.D. Pa. Sept. 22, 2015) .............................................. 17
Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61 (3d Cir. 1984) ................................. 4
Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003)................................................. 8
Wallace v. MediaNews Group, Inc.,
No. 12-CV-0872, 2013 WL 214632 (M.D. Pa. Jan 18, 2013) ............................................ 15, 18
World Wrestling Fed’n Entm’t Inc. v. Big Dog Holdings, Inc.,
280 F. Supp. 2d 413 (W.D. Pa. 2003) ................................................................................. 16, 18
Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) .............................................................. 11

Statutes
28 U.S.C. § 1391(b)(2) ............................................................................................................. 9, 10
47 U.S.C. § 230 ................................................................................................................. 10, 11, 12
42 Pa. Cons. Stat. § 8316 ....................................................................................................... passim

Rules
Federal Rule of Civil Procedure 12(b)(2) ............................................................................... 1, 2, 3
Federal Rule of Civil Procedure 12(b)(3) ............................................................................... 1, 2, 9
Federal Rule of Civil Procedure 12(b)(6) ....................................................................... 1, 2, 11, 13

Other Authorities
Merriam–Webster Online Dictionary
(available at http://www.merriam-webster.com/dictionary/) ...................................................... 2

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I. INTRODUCTION

Plaintiff Karen Hepp brings right of publicity claims against Defendant Giphy, Inc.

(“Giphy”), a Delaware corporation, based solely on the allegation that an anonymous person took

a photo of her in New York City which was made available in substantively modified form on

Giphy’s searchable database of animated images (called “GIFs”). The Complaint does not allege

that Giphy has any connection to Pennsylvania, nor does it allege that Giphy knew this GIF had

been added to its website or had any role in creating it. Given these facial deficiencies, the

Complaint should be dismissed.

First, the Court should dismiss the Complaint pursuant to Federal Rule of Civil Procedure

12(b)(2), as it has neither general nor specific personal jurisdiction over Giphy in this action.

Second, it should dismiss the Complaint pursuant to Rule 12(b)(3) because none of the acts

or omissions giving rise to Plaintiff’s claims occurred in the Eastern District of Pennsylvania.

Third, in the event this Court does not dismiss the Complaint on jurisdictional grounds, it

should dismiss the Complaint with prejudice pursuant to Rule 12(b)(6) because Section 230 of the

federal Communications Decency Act of 1996 and Section 8316(d) of Pennsylvania’s right of

publicity law provide Giphy with immunity from these claims.

And fourth, it should dismiss the Complaint with prejudice pursuant to Rule 12(b)(6)

because Plaintiff’s own Complaint demonstrates that she cannot satisfy the elements of the claims

she pleads.

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II. BACKGROUND AND RELEVANT ALLEGATIONS

A. Giphy

Giphy is a Delaware corporation. Compl. (Dkt. 1) ¶ 13; Richards Decl. ¶ 2. 1 Giphy has no

offices in Pennsylvania, has no employees in Pennsylvania, owns no real property in Pennsylvania,

and holds no bank accounts or other assets in Pennsylvania. Id. ¶ 6. Giphy does not specifically

target any marketing or promotional material at Pennsylvania. Id. ¶ 5. Giphy is not alleged to be

(and it is not) a Pennsylvania resident. Compl. ¶ 13; Richards Decl. ¶¶ 2-3.

Giphy operates a website and software platform that, among other things, allows users to

search and access an online database of animated Graphics Interchange Format (“GIF”) files.

Compl. ¶ 14. “Broadly speaking, a GIF is ‘a computer file format for the compression and storage

of digital video images.’ In popular culture, [animated] GIFs are often used on the internet to

convey humorous ideas, much like a meme.” Braham v. Sony/ATV Music Publ’g, No. 15-CV-

8422, 2015 WL 7074571, at *4 n.5 (C.D. Cal. Nov. 10, 2015) (citing GIF, Merriam–Webster

Online Dictionary (available at http://www.merriam-webster.com/dictionary/GIF)). Giphy is used

by hundreds of millions of people, located in all 50 states and around the world. Richards Decl.

¶ 4. These users view billions of GIFs every day. Id.

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Giphy’s motion to dismiss pursuant to Rule 12(b)(6) is based on the facts alleged in the
Complaint and those matters that are properly subject to judicial notice. Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Giphy’s motion to dismiss pursuant to Rule
12(b)(2) and (3) also relies on a declaration submitted by Whit Richards, Giphy’s CFO. When a
defendant raises a jurisdictional objection at the pleading stage, “the court must consider any
affidavits submitted by the parties.” Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588, 602
(E.D. Pa. 2010).

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B. Plaintiff’s Allegations

Plaintiff alleges 2 that she is a television news anchor who appears on local Philadelphia

programming between the hours of 4 AM and 6 AM and again between 9 AM and 10 AM. Compl.

¶ 19. Plaintiff worked in New York City until November of 2010. Id. ¶¶ 18, 20. At some point

before September 2017, a photograph of Plaintiff was taken by a security camera in a New York

City convenience store. Id. ¶ 24. An unknown person uploaded that photograph without Plaintiff’s

consent to a number of online platforms. Id. ¶¶ 26-31. The version of the photograph made

available on Giphy was substantively modified and converted to an animated GIF. Id. ¶ 30.

Plaintiff contends that these actions constitute violations by Giphy of 42 Pa. Cons.

Stat. § 8316 and Pennsylvania’s common law right of publicity. Compl. at 6-7.

III. THE COURT SHOULD DISMISS PLAINTIFF’S COMPLAINT BECAUSE IT


LACKS PERSONAL JURISDICTION OVER GIPHY

A. Legal Standard

Personal jurisdiction is “an essential element of the jurisdiction of a district court, without

which the court is powerless to proceed to an adjudication.” Ruhrgas AG v. Marathon Oil Co., 526

U.S. 574, 584 (1999) (internal quotation marks and alterations omitted). The plaintiff “bears the

burden of establishing with reasonable particularity sufficient contacts between the defendant and

the forum state to support jurisdiction.” Gehling v. St. George’s Sch. of Med., 773 F.2d 539, 542

(3d Cir. 1985). Once a Rule 12(b)(2) defense has been raised, “the plaintiff must sustain its burden

of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence.

. . . [A]t no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant’s

Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction. Once the motion is made,

2
The factual allegations set forth in this brief are taken from Plaintiff’s Complaint and are
assumed to be true solely for purposes of this motion.

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plaintiff must respond with actual proofs, not mere allegations.” Time Share Vacation Club v. Atl.

Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984) (citation omitted).

A district court typically exercises personal jurisdiction according to the long-arm statute

of the state in which it sits. O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007).

Because Pennsylvania’s long-arm statute extends personal jurisdiction to the limits of

constitutional due process, here Plaintiff must demonstrate that Giphy has “certain minimum

contacts with Pennsylvania such that the maintenance of the suit does not offend traditional notions

of fair play and substantial justice.” Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316

(1945)) (alterations omitted).

There are two ways in which Plaintiff could demonstrate the existence of personal

jurisdiction: general jurisdiction and specific jurisdiction. O’Connor, 496 F.3d at 317. Plaintiff

cannot show personal jurisdiction over Giphy under either theory.

B. This Court Lacks General Jurisdiction Over Giphy

“The Supreme Court has held that a state court’s general jurisdiction over a corporation

exists only where the state is the defendant’s home, that is, the state of its incorporation, or the

state of its principal place of business or ‘in an exceptional case’ where ‘its operations may be so

substantial and of such a nature as to render the corporation at home in that state.’” In re Zostavax

(Zoster Vaccine Live) Prod. Liab. Litig., 358 F. Supp. 3d 418, 423 (E.D. Pa. 2019) (quoting, inter

alia, Daimler AG v. Bauman, 571 U.S. 117, 137-139 n.19 (2014)). “[I]t is incredibly difficult to

establish general jurisdiction over a corporation in a forum other than the place of incorporation

or principal place of business.” Chavez v. Dole Food Co., Inc., 836 F.3d 205, 223 (3d Cir. 2016)

(internal quotation marks and citation omitted). Even where a defendant has employees and assets

in a particular state, general jurisdiction will not exist if those contacts are small compared to the

company’s nationwide activities. See BNSF Railway Co v. Tyrrell, 137 S. Ct. 1549, 1554 (2017)

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(holding that a national railroad company was not subject to general jurisdiction in Montana

notwithstanding the fact that it had “over 2,000 miles of railroad track and more than 2,000

employees” in the state).

Because Giphy is not “essentially at home” in Pennsylvania, it is not subject to general

jurisdiction here. Daimler, 571 U.S. at 139; see also Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915 (2011) (setting strict constitutional limits on exercise of general personal

jurisdiction over non-resident corporations).

Plaintiff concedes that Giphy’s place of incorporation is Delaware, not Pennsylvania.

Compl. ¶ 13; see also Richards Decl. ¶ 2. It has no places of business other than New York,

California, and Illinois. Id. ¶ 3. And this is not an exceptional case where a defendant has

substantial operations that render it otherwise at home in Pennsylvania, because Giphy has no

operations in Pennsylvania whatsoever. Id. ¶ 6. It owns no real estate in Pennsylvania, has no

employees in Pennsylvania, and possesses no bank accounts or assets in Pennsylvania. Id. ¶ 6. It

does not target its marketing specifically at residents of Pennsylvania. Id. ¶ 5. Giphy is a website

and software platform, available nationwide, and any contacts with Pennsylvania are merely

incidental and miniscule in comparison to the site’s nationwide operations.

Thus, this Court cannot find that general personal jurisdiction exists over Giphy.

C. This Court Lacks Specific Jurisdiction Over Giphy

“In determining whether there is specific jurisdiction, we undertake a three-part inquiry.

First, the defendant must have purposefully directed its activities at the forum. Second, the

litigation must arise out of or relate to at least one of those activities. And third, if the first two

requirements have been met, a court may consider whether the exercise of jurisdiction otherwise

comports with fair play and substantial justice.” D’Jamoos ex rel. Estate of Weingeroff v. Pilatus

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Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009) (citations, internal quotation marks, and alterations

omitted). None of these elements are met here.

To determine whether purposeful direction exists for a tort claim such as breach of the right

of publicity, courts apply the “effects test” set out in Calder v. Jones, 465 U.S. 783 (1984). As the

Third Circuit has explained, the relevant inquiry requires that the plaintiff show, inter alia, that the

defendant “expressly aimed his tortious conduct at the forum such that the forum can be said to be

the focal point of the tortious activity.” IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 266 (3d Cir.

1998). Plaintiff “must show that the defendant knew that the plaintiff would suffer the brunt of the

harm caused by the tortious conduct in the forum, and point to specific activity indicating that the

defendant expressly aimed its tortious conduct at the forum.” Id. “It is not enough [to establish

specific jurisdiction] for Plaintiffs to have suffered harm in Pennsylvania by something Defendants

did elsewhere.” Arnold v. Irish Bred Pub Concepts Co., No. 17-CV-3643, 2018 WL 1960815, at

*2 (E.D. Pa. Apr. 25, 2018).

The Third Circuit has found in similar circumstances that the mere posting without

authorization of an image of a plaintiff on a defendant’s universally-accessible website does not

constitute express aiming of conduct at the plaintiff’s home state. See Remick v. Manfredy, 238

F.3d 248, 259 (3d Cir. 2001). In Remick, the defendant posted an image of the plaintiff on a boxing

website without the plaintiff’s permission. Id. The website was intended to provide information

about the defendant and “was accessible worldwide.” Id. Plaintiff argued that the fact that he

suffered alleged harm in Pennsylvania, his home state, was sufficient to show purposeful direction.

Appellant’s Brief at 24, Remick, 238 F.3d 248 (No. 99-1422), 2000 WL 34004960. The Third

Circuit held that the effects test was “clearly not satisfied,” because there was “no basis to conclude

that the defendants expressly aimed their allegedly tortious activity at Pennsylvania knowing that

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harm was likely to be caused there . . . . Any resulting harm to [the plaintiff] was merely

incidental.” 238 F.3d at 259.

So it is here. Like the defendant in Remick, Giphy is not alleged to have taken any actions

in or deliberately targeted at Pennsylvania. As Plaintiff alleges, Giphy is merely a website “that

consists of an online database and search engine that allows users to search for and share short

looping videos.” Compl. ¶ 14. A modified photograph of Plaintiff taken in New York was allegedly

added to Giphy. Compl. ¶ 30. That is the whole of Plaintiff’s allegations regarding Giphy’s

allegedly tortious conduct. This is far less compelling than the fact pattern in Remick, where the

parties were acquainted and knew one another’s locations. 3 238 F.3d at 253, 259 (plaintiff was

defendant’s lawyer).

As a result, this Court lacks specific jurisdiction over Giphy.

D. The Internet Does Not Create Personal Jurisdiction Over Giphy Where It Would
Not Otherwise Exist

The mere fact that Giphy is a website and therefore accessible around the world does not

somehow lower Plaintiff’s bar to establish personal jurisdiction in this case. “The advent of the

Internet did not alter the Third Circuit’s requirement that the Plaintiff make a very high showing

3
In fact, there is not a single allegation in the Complaint (or available to Plaintiff outside it)
to suggest that Giphy should have known that Plaintiff would suffer any injury in Pennsylvania
other than the conclusory, unsupported statements that she is “well-regarded in the Philadelphia
community” and a “well-known public figure.” Compl. ¶¶ 33-34; cf. Steak Umm Co., LLC v.
Steak ‘Em Up, Inc., No. 09-CV-2857, 2011 WL 3679155, at *8 (E.D. Pa. Aug. 23, 2011) (“A
plaintiff’s conclusory statement that its products are well-known and highly regarded is
insufficient evidence of fame.”). There are no allegations that Giphy had any idea who Plaintiff
was, that it did anything affirmatively to target Plaintiff, or that it knew where any allegedly
tortious conduct would cause her harm. Cf. Calder, 465 U.S. at 789-90 (finding personal
jurisdiction over defendants because they knew who plaintiff was, knew that plaintiff “lived and
worked” in California such that the brunt of her injury would be felt there, conducted activities in
California in preparing to commit the tort, and knew their actions would have a “potentially
devastating impact” on plaintiff in the state where their magazine “ha[d] its largest circulation”).

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before a court exercises general jurisdiction over a non-resident defendant.” Orazi v. Hilton Hotels

Corp., No. 09-CV-05959, 2010 WL 4751728, at *6 (E.D. Pa. Nov. 22, 2010) (citation and internal

quotation marks omitted); see also Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir.

2003) (“[T]he mere operation of a commercially interactive web site should not subject the

operator to jurisdiction anywhere in the world.”); Molnlycke Health Care AB v. Dumex Med.

Surgical Prod. Ltd., 64 F. Supp. 2d 448, 452 (E.D. Pa. 1999) (no general jurisdiction over website

where plaintiff made no showing that website “targeted Pennsylvania”). And where plaintiffs

argue that internet-based contacts alone create specific jurisdiction, they must still provide

evidence “that the defendant ‘purposefully availed’ itself of conducting activity in the forum state.”

Toys “R” Us, 318 F.3d at 454. There is no such evidence as to Giphy. Supra Part III.B-C; Richards

Decl. ¶¶ 5-6. See also Fatouros v. Lambrakis, 627 F. App’x 84, 88 (3d Cir. 2015) (“[P]osting

allegedly defamatory comments or information on an internet site does not, without more, subject

the poster to personal jurisdiction wherever the posting could be read.”) (quoting Shrader v.

Biddinger, 633 F.3d 1235, 1241 (10th Cir. 2011)

Maintaining the high standard for establishing personal jurisdiction is essential in this

context, as otherwise the ongoing expansion of the internet into ordinary Americans’ lives would

lead to nationwide personal jurisdiction for all internet companies. See Advanced Tactical

Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 803 (7th Cir. 2014) (“Having an

‘interactive website’ (which hardly rules out anything in 2014) should not open a defendant up to

personal jurisdiction in every spot on the planet where the interactive website is accessible.”). In

Grant Street Group, Inc. v. D & T Ventures, LLC, No. 10-CV-1095, 2012 WL 13689, at *7 (W.D.

Pa. Jan. 4, 2012), the court held that the defendant’s provision of an interactive tax auction website

to customers nationwide, some of whom were from the forum state of Pennsylvania, did not

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establish specific personal jurisdiction because the “unilateral activity” of those Pennsylvania

citizens was “not attributable” to the defendants. The court noted that adopting the plaintiff’s

argument would “subject a defendant to nationwide personal jurisdiction” simply because the

plaintiff decided “to do business with a company that does business nationwide.” Id. (citations and

internal quotation marks omitted). And unlike in that case, there can be no argument that Plaintiff’s

claims here arise out of her interactions with Giphy in Pennsylvania because Plaintiff does not

allege that she had any interaction with Giphy. See also Pearce v. Mizuho Bank, Ltd., No. 18-CV-

306, 2018 WL 4094812, at *5-6 (E.D. Pa. Aug. 27, 2018) (because defendant, an online Bitcoin

exchange, “never engaged in any transactional contact with” plaintiff, there was insufficient

“relationship among [defendant], the forum, and the litigation” to sustain personal jurisdiction).

Thus, the Court should follow the well-established law that a website that hosts third-party

content that is accessible in every jurisdiction in the United States need not be prepared to be haled

into court in any district in the nation merely because individuals who might allege offense or

injury from that content may live all over the country.

IV. THE COURT SHOULD DISMISS PLAINTIFF’S COMPLAINT BECAUSE THIS


DISTRICT IS AN IMPROPER VENUE FOR HER CLAIMS

A. Legal Standard

A plaintiff’s claims should be dismissed pursuant to Rule 12(b)(3) if they are brought in an

improper venue. In this action, Plaintiff relies exclusively on 28 U.S.C. § 1391(b)(2) to establish

the propriety of venue. Compl. ¶ 5. Venue is proper under this provision only in “a judicial district

in which a substantial part of the events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is situated.” § 1391(b)(2). This language

“favors the defendant in a venue dispute by requiring that the events or omissions supporting a

claim be ‘substantial.’ Events or omissions that might only have some tangential connection with

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the dispute in litigation are not enough.” Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291,

294 (3d Cir. 1994).

B. This District Is An Improper Venue Because None Of The Acts Or Omissions


Giving Rise To Plaintiff’s Claims Occurred Here

Plaintiff alleges that venue is proper in this district “pursuant to 28 U.S.C. § 1391(b)(2)

because a substantial part of the acts, omissions and events giving rise to the claims asserted in

this Complaint occurred in this judicial district.” Compl. ¶ 5. In fact, the Complaint fails to allege

that any acts, omissions, or events which gave rise to the claims asserted in the Complaint occurred

in the Eastern District of Pennsylvania. The offending photograph was taken in New York City

(Compl. ¶ 24), the Complaint makes no allegations about who added the photograph to Giphy or

where they were located, and Giphy has no presence in Pennsylvania. Supra Part III; Richards

Decl. ¶ 6. To the extent that Plaintiff alleges that venue is proper based on the economic harm she

allegedly suffered in the Eastern District, see Compl. ¶ 4(b), “allegations of harm in this district

are insufficient to meet the ‘substantial’ requirements” of § 1391(b)(2). Loeb v. Bank of Am., 254

F. Supp. 2d 581, 587 (E.D. Pa. 2003). Plaintiff’s conclusory and unsupported allegation should be

ignored, and the Complaint should be dismissed.

V. THE COURT SHOULD DISMISS PLAINTIFF’S COMPLAINT BECAUSE IT


FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

A. Plaintiff’s Claims Are Barred By Section 230 Of The Federal Communications


Decency Act

Section 230(c)(1) of the Communications Decency Act of 1996 (the “CDA”), 47 U.S.C.

§ 230, immunizes online communications platforms like Giphy from liability when they allow

third parties to create and distribute material, and where the alleged harm stems from that material.

Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003).

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1. Legal Standard

The CDA provides that no website “shall be treated as the publisher or speaker of any

information provided by another information content provider.” 47 U.S.C. § 230(c)(1). “No cause

of action may be brought and no liability may be imposed under any State or local law that is

inconsistent with this section.” § 230(e)(3).

Together, these sections “provide[] immunity to [an interactive computer service provider]

as a publisher or speaker of information originating from another information content provider.”

Green, 318 F.3d at 471. “The provision ‘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 functions – such

as deciding whether to publish, withdraw, postpone, or alter content.’” Id. (quoting Zeran v. Am.

Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). Courts in this circuit have explained that websites

which “either archive[] or simply provide[] access to content that was created by third parties” are

immunized from liability arising from that content by section 230. Obado v. Magedson, No. 13-

CV-2382, 2014 WL 3778261, at *4 (D.N.J. July 31, 2014), aff’d, 612 F. App’x 90 (3d Cir. 2015);

see also Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006) (“In each instance raised

by Plaintiff’s tort claims, Google either archived, cached, or simply provided access to content that

was created by a third party. . . . It is clear that § 230 was intended to provide immunity for service

providers like Google on exactly the claims Plaintiff raises here.”), aff’d, 242 F. App’x 833 (3d

Cir. 2007).

A district court may grant a Rule 12(b)(6) motion with prejudice on Section 230 immunity

grounds, and need not wait for that defense to be raised at summary judgment. The Third Circuit

routinely affirms such dismissals. See, e.g., Green, 318 F.3d at 471; Obado, 612 F. App’x at 91-

94; Kabbaj v. Google Inc., 592 F. App’x 74 (3d Cir. 2015).

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2. Section 230 Bars State Law Claims Like Plaintiff’s

Because Plaintiff seeks to hold Giphy responsible for third-party content on its online

platform, her claims are necessarily barred by Section 230. As Plaintiff alleges, Giphy is a platform

to which anyone can add content. Compl. ¶ 14 (Giphy operates “an online database and search

engine that allows users to search for and share short looping videos”). Indeed, the Complaint is

devoid of any allegation that Giphy created or added the GIF at issue to the platform.

Even if Plaintiff had alleged that Giphy affirmatively “decid[ed] whether to provide access

to third-party content or whether to delete the content from its archival or cache” (which she does

not), that would still constitute a protected editorial function under Section 230. Obado, 2014 WL

3778261, at *5 (quoting Mmubango v. Google, Inc., No. 12-CV-1300, 2013 WL 664231, at *3

(E.D. Pa. Feb. 22, 2013)).

Courts in this circuit have held that Section 230 bars state law right of publicity claims in

these circumstances. See, e.g., Parker v. Paypal, Inc., No. 16-CV-4786, 2017 WL 3508759, at *7

(E.D. Pa. Aug. 16, 2017) (California right to publicity and Pennsylvania right to privacy claims

barred by § 230); Obado, 2014 WL 3778261, at *4-8 (Section 230 provided immunity to defendant

search engines in New Jersey state law right of publicity action). As the Court wrote in a similar

right to publicity case, “[a]lthough Plaintiff argues that Moving Defendants are liable for a third

party’s misappropriation of his work and likeness when Moving Defendants merely hosted the

offending work but did not publish or alter its content, he is mistaken. His state law claims are

clearly preempted and prohibited by § 230.” Parker, 2017 WL 3508759 at *7.

B. Plaintiff Otherwise Fails To State A Claim

Even if this Court was not jurisdictionally barred from reaching the merits of Plaintiff’s

claims (it is), and even if the CDA did not provide Giphy with absolute immunity from Plaintiff’s

claims (it does), the Complaint would still merit dismissal for failing to adequately plead the

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elements of Plaintiff’s claims. First, Plaintiff fails to adequately allege that Giphy had a

“commercial purpose” in publishing the relevant GIF, which is a necessary element of both her

statutory and common law claims. Second, subsection (d) of Pennsylvania’s right of publicity

statute provides Giphy with immunity as a “communications medium.” Third, Plaintiff’s common

law claim necessarily fails as it has been subsumed by her statutory claim.

1. Legal Standard

“Rule 12(b)(6) provides for the dismissal of a complaint for failure to state a claim upon

which relief can be granted.” Ricoh USA, Inc. v. Bailon, --- F. Supp. 3d ----, ----, 2019 WL

6682144, at *2 (E.D. Pa. Dec. 6, 2019). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “A complaint that merely alleges entitlement to relief, without alleging facts that

show entitlement, must be dismissed.” Ricoh USA, 2019 WL 6682144, at *2. While a court should

“accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the

plaintiff,” City of Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878–79 (3d

Cir. 2018), it must “disregard threadbare recitals of the elements of a cause of action, legal

conclusions, and conclusory statements.” Id. at 879 (quoting James v. City of Wilkes-Barre, 700

F.3d 675, 681 (3d Cir. 2012)).

“Evaluation of a Rule 12(b)(6) motion entails a three-step analysis: (1) the district court

must take note of the elements the plaintiff must plead to state a claim; (2) it should identify

allegations that, because they are no more than conclusions, are not entitled to the assumption of

truth; and, (3) when there are well-pleaded factual allegations, the court should assume their

veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ricoh

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USA, 2019 WL 6682144, at *3 (quoting Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d

Cir. 2016) (alterations omitted)).

2. Plaintiff’s Statutory Claim Fails

Plaintiff’s statutory right of publicity claim fails for two reasons. First, there can be no

cause of action under 42 Pa. Cons. Stat. § 8316 if a defendant has not used a plaintiff’s name and

likeness for a “commercial or advertising purpose.” § 8316(a). And second, subsection (d) of the

statute provides immunity to “communications medium[s]” like Giphy where they did not have

“actual knowledge of the unauthorized use of the name or likeness of a natural person as prohibited

by this section.” § 8316(d). Here, Plaintiff alleges no commercial or advertising purpose, and even

if she had, she does not allege that Giphy had actual knowledge of the particular GIF at issue.

a. Giphy Did Not Use Plaintiff’s Likeness For Any Commercial Or


Advertising Purpose, As Required By Statute

Pennsylvania’s “unauthorized use of name or likeness” statute provides a cause of action

to a “natural person whose name or likeness has commercial value and is used for any commercial

or advertising purpose without consent.” § 8316(a). Subsection (e) of the statute defines a

“commercial or advertising purpose” as “the public use or holding out of a natural person’s name

or likeness: (i) on or in connection with the offering for sale or sale of a product, merchandise,

goods, services or businesses; (ii) for the purpose of advertising or promoting products,

merchandise, goods or services of a business; or (iii) for the purpose of fundraising.”

However, the statute expressly provides that the term “shall not include the public use or

holding out of a natural person’s name or likeness in a communications medium when . . . the

natural person appears as a member of the public and the natural person is not named or otherwise

identified.” § 8316(e)(2). This is precisely the circumstance at bar, and this categorical exclusion

makes any amendment of the Complaint futile.

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Even if subsection (e)(2) was not decisive, the Complaint is devoid of any allegation that

Giphy used or held out plaintiff’s likeness “on or in connection with the offering for sale or sale

of a product, merchandise, goods, services, or businesses” or “for the purpose of advertising or

promoting products, merchandise, goods or services of a business.” § 8316(e). Indeed, the

Complaint fails to elucidate how Giphy received any commercial benefit whatsoever from the

inclusion of the image in Exhibit E in its search results. As Exhibit E itself demonstrates, no

advertising appeared on the search results page that included Plaintiff’s photograph, and there is

no allegation that Giphy was paid to host the image.

Instead, all that the Complaint offers is one conclusory statement that “[t]hrough their

actions, described supra, Defendants have appropriated Plaintiff’s likeness, which has commercial

value, and used same for commercial purposes.” Compl. ¶ 36. But the only action that Giphy is

alleged to have taken is to own and operate an online GIF database and search engine. Id. ¶ 14.

The sole claim-specific allegation about Giphy in the Complaint simply states that a modified

photo of Plaintiff appeared on Giphy’s site. Id. ¶ 30. These are not sufficient allegations of a

“commercial purpose” on which to base a statutory right of publicity claim.

In Wallace v. MediaNews Group, Inc., the Middle District of Pennsylvania held that a

newspaper’s use of an allegedly misappropriated photo “to illustrate a newsworthy article [did]

not state a misappropriation claim” under Section 8316 because the plaintiff failed to allege a

sufficient commercial purpose. No. 12-CV-0872, 2013 WL 214632, at *4 (M.D. Pa. Jan. 18, 2013),

aff’d in relevant part, vacated in part, 568 F. App’x 121 (3d Cir. 2014). If publishing a photograph

in a for-profit newspaper does not constitute a commercial purpose, neither can the appearance of

a photograph in a GIF database and search engine.

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Indeed, the circumstances in which courts have found the commercial purpose element

satisfied are plainly distinguishable from those alleged in Plaintiff’s threadbare complaint. “The

right of publicity is often invoked in the context of commercial speech when the appropriation of

a celebrity likeness creates a false and misleading impression that the celebrity is endorsing a

product.” World Wrestling Fed’n Entm’t Inc. v. Big Dog Holdings, Inc., 280 F. Supp. 2d 413, 444

(W.D. Pa. 2003) (“WWF”). There is no allegation here that Giphy created any impression that

Plaintiff was endorsing its product.

The court’s opinion in Eagle v. Morgan, No. 11-CV-4303, 2013 WL 943350, at *7 (E.D.

Pa. Mar. 12, 2013), demonstrates the real-world application of this principle. There, the court

found that the defendant had obtained a commercial benefit where it had used the plaintiff’s name

without her consent in order to attract those searching for her to their website. Id. Here, there is no

such allegation; Plaintiff does not allege that there is any way that a person looking for information

about her could somehow be diverted to Giphy. Nor is there any allegation that Giphy itself

selected Plaintiff’s photo or chose to cause it to appear in its search results, distinguishing it from

Section 8316 cases like Diodato v. Wells Fargo Ins. Servs., USA, Inc., 44 F. Supp. 3d 541 (M.D.

Pa. 2014), where the defendant affirmatively selected plaintiff’s name and used it to promote their

business.

Because Plaintiff has not and cannot satisfy this necessary element of her claim, it should

be dismissed.

b. As A “Communications Medium,” Giphy Is Immune From § 8316


Claims Absent “Actual Knowledge” Of Unauthorized Use

Subsection (d) of Pennsylvania’s right of publicity statute provides that “[n]o person, firm

or corporation, including their employees and agents, in the business of producing, manufacturing,

publishing or disseminating material for commercial or advertising purposes by any

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Case 2:19-cv-04034-JMY Document 45-1 Filed 02/10/20 Page 23 of 25

communications medium shall be held liable under this section unless they had actual knowledge

of the unauthorized use of the name or likeness of a natural person as prohibited by this section.”

42 Pa. Cons. Stat. § 8316(d). Giphy is a “corporation” (Compl. ¶ 13), and it “disseminat[es]

material” over the internet, undoubtedly a “communications medium.” Because the Complaint

fails to plead that Giphy had knowledge of any kind regarding the unauthorized use of Plaintiff’s

name or likeness, Giphy cannot be liable under this statute.

3. Plaintiff’s Common Law Right of Publicity Claim Fails

a. Plaintiff’s Common Law Cause Of Action Has Been Subsumed By


Her Statutory Cause Of Action

While Plaintiff augments her statutory claim with a nearly identical common law right of

publicity claim, the great weight of authority indicates that there is no longer a valid common law

cause of action for right of publicity in Pennsylvania, as it has been “clearly subsumed” by

Section 8316. See, e.g., Facenda v. N.F.L. Films, Inc., 488 F. Supp. 2d 491, 513 (E.D. Pa. 2007),

aff’d in part, vacated in part on other grounds, 542 F.3d 1007 (3d Cir. 2008); see also The Choice

Is Yours, Inc. v. The Choice Is Yours, No. 14-CV-1804, 2015 WL 5584302, at *4 (E.D. Pa. Sept.

22, 2015) (noting that “[t]he Third Circuit, in dicta, appeared to concur” with the district court in

Facenda that the common law cause of action has been thusly subsumed). Accord Evans v. Wurkin

Stiffs, Inc., No. 15-61934-CIV, 2016 WL 8793339, at *8 (S.D. Fla. Mar. 21, 2016) (“To the extent

that there was ever a common law cause of action for misappropriation of identity in Pennsylvania,

it has been subsumed by § 8316.” (citing Facenda, 488 F. Supp. 2d at 513)).

b. Even If Plaintiff’s Common Law Claim Has Not Been Subsumed,


It Fails To Plead Giphy’s Commercial Purpose

Like the statutory provision that subsumed it, the common law right of publicity requires

that an alleged misappropriator use the plaintiff’s name or likeness to its commercial advantage.

Philadelphia Orchestra Ass’n v. Walt Disney Co., 821 F. Supp. 341, 349 (E.D. Pa. 1993)

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Case 2:19-cv-04034-JMY Document 45-1 Filed 02/10/20 Page 24 of 25

(defendant violates plaintiff’s common law right of publicity by “appropriating its valuable name

or likeness, without authorization, [and using it] to defendant's commercial advantage”); see also

WWF, 280 F. Supp. 2d at 443 (same). For the reasons discussed above, Plaintiff has not sufficiently

alleged that Giphy has done so, and thus any common law claim must also fail.

VI. CONCLUSION

For the foregoing reasons, the Court should dismiss Plaintiff’s Complaint against Giphy.

Given Giphy’s federal and state statutory immunity for the conduct alleged in the Complaint, such

dismissal should be with prejudice. See Obado, 612 F. App’x at 92 (dismissing action barred by

CDA § 230 with prejudice); Wallace, 2013 WL 214632, at *4, 7 (dismissing Pennsylvania right

of publicity claim with prejudice).

Dated: February 10, 2020 By: /s/ Robert Jackel


Robert Jackel
LAW OFFICE OF ROBERT JACKEL
399 Market Street, Suite 360
Philadelphia, PA 19106
Tel: (225) 610-8060
rjackel@jackel-law.com

Joshua Michelangelo Stein (pro hac vice)


Andrew Esbenshade (pro hac vice)
BOIES SCHILLER FLEXNER LLP
725 S. Figueroa Street
31st Floor
Los Angeles, CA 90017
Tel: (213) 995-5715
jstein@bsfllp.com
aesbenshade@bsfllp.com

Samuel S. Ungar (pro hac vice)


BOIES SCHILLER FLEXNER LLP
1401 New York Avenue, NW
Washington, DC 20005
Tel: (202) 237-2727
sungar@bsfllp.com

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Case 2:19-cv-04034-JMY Document 45-1 Filed 02/10/20 Page 25 of 25

Karen A. Chesley (pro hac vice)


BOIES SCHILLER FLEXNER LLP
55 Hudson Yards
20th Floor
New York, NY
Tel: (212) 303-3525
kchesley@bsfllp.com

Attorneys for Giphy, Inc.

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