Not Quite So Sweet: POPSUGAR’s Removal of Instagram Sidebar Leads to a Loss on All Fronts

Can removing an author’s identifying information when posting the author’s work on Instagram constitute copyright infringement? Yes, the Northern District of California said recently.

One of the authors who claimed to be affected, Nita Batra, filed a class action suit against POPSUGAR Inc., on behalf of “persons with large numbers of followers on social media” (also known as “influencers”). POPSUGAR is an American media and technology company that runs a pop culture blog. According to Batra, POPSUGAR had “copied thousands of influencers’ Instagram images” while removing both the sidebar on the images, which contained identifying information, and the links that allowed the authors to monetize their images. POPSUGAR’s actions, Batra alleged, deprived the authors of the profits they should have gotten when users clicked through the images and bought something, allowing POPSUGAR to reap the profits instead. 

POPSUGAR moved to dismiss all six of Batra’s claims against it, but the district court  rejected each of its arguments and denied  the motion to dismiss in its entirety. For example, in seeking to dismiss Batra’s first claim—that POPSUGAR violated the Digital Media Copyright Act—POPSUGAR contended that Batra’s allegations were insufficient both because she failed to identify the removed copyright management information (“CMI”) and also because she failed to plead that POPSUGAR possessed the requisite mental state to violate the statute, 17 U.S.C. § 1202(b), which requires the removal or alteration of CMI to be done “intentionally.” But the court disagreed. Instead, it found that the Instagram sidebar contained identifying information that would “plausibly” constitute CMI under § 1202(c) and also that the “plausible inference” from the complaint was that POPSUGAR knowingly removed the Instagram sidebar in an effort to conceal its infringement of Batra’s photographs.

The court also rejected POPSUGAR’s attempt to dismiss of Batra’s second claim—that POPSUGAR committed copyright infringement. POPSUGAR argued that Batra’s claim was defective because she failed to identify the specific photographs at issue. The court said that at the pleadings stage, however, Batra was not required to allege  specific copyright registration information but instead merely had to allege facts sufficient to support a claim for damages and fees.

The court then addressed, and rejected, POPSUGAR’s contention that three of Batra’s other claims—misappropriation of Batra’s likeness, intentional interference with contract, and violation of California’s Unfair Competition Law violations—were preempted by Copyright Act. In particular, the court found that because Batra’s misappropriation claim was not based exclusively on the publication of the photographs at issue, but involved information outside the photographs, it was not preempted by the Copyright Act. For much the same reason, the court held that because the subject matter of the contract-interference and unfair-competition claims was not limited to the photographs but also included the removal of monetized links as a key component, these claims were similarly not preempted.

Finally, the court rejected  POPSUGAR’s contention that Batra’s final claim, which alleged a violation of the Lanham Act, should be dismissed because there was no misleading representation regarding  the end products sold to a consumer. POPSUGAR had relied on cases holding that there was no confusion regarding the origin of goods when the goods both parties sold were manufactured by the same source. The court, however, distinguished those cases on the ground that neither POPSUGAR nor Batra was a retailer of the goods, and the issue was not whether POPSUGAR’s actions confused the consumer about the origin of the goods but whether its use of the images resulted in the impression that Batra endorsed or was otherwise affiliated with POPSUGAR’s service. Therefore, Batra’s complaint was sufficient to allege a Lanham Act violation.

The case is Batra v. POPSUGAR Inc., 2019 WL 482492, No. 18-cv-03752-HSG (N.D. Cal. Feb. 7, 2018).