Ratermann v. Pierre Fabre: Right of Publicity

The S.D.N.Y. held New York's privacy statute is not intellectual property, so Section 230 shielded retailers, while a model's claim against the brand survived.

In Ratermann v. Pierre Fabre USA, Inc., No. 1:22-cv-00325 (JMF) (S.D.N.Y. Jan. 17, 2023), Judge Jesse M. Furman of the United States District Court for the Southern District of New York decided a dispute that captures two forces reshaping the right of publicity in the platform era: the routine over-extension of narrow social-media licenses, and the immunity that Section 230 of the Communications Decency Act extends to the online retailers where misused images end up. A professional model had granted a tightly limited license to use her likeness in Instagram advertising for a skincare brand. When her image surfaced on product pages across the internet, she sued the brand, the video producer, and a roster of major retailers. The court sorted the claims defendant by defendant, and in the process delivered one of the clearest modern statements that a New York publicity claim is not intellectual property for Section 230 purposes.

At a glance

Case: Ratermann v. Pierre Fabre USA, Inc., No. 1:22-cv-00325 (JMF) (S.D.N.Y. Jan. 17, 2023).
Decided: January 17, 2023, by Judge Jesse M. Furman, on motions to dismiss.
Holding: New York Civil Rights Law sections 50 and 51 protect privacy, not intellectual property, so they fall outside Section 230’s IP exception; the retailer defendants were immune, while the privacy claim against the brand proceeded.
Significance: A leading platform-era decision on influencer licensing overreach that splits with Hepp v. Facebook on whether state identity claims pierce Section 230 immunity.
Status: Motions to dismiss resolved; some claims survived and the litigation continued past the pleading stage.

Two statutes in tension: New York privacy and Section 230

New York’s right of publicity is unusual. Unlike California, New York recognizes no common-law right of publicity for the living. Its sole protection lives in Civil Rights Law sections 50 and 51, enacted in 1903 after the Court of Appeals in Roberson v. Rochester Folding Box Co. refused to recognize a common-law privacy right. Those sections make it a wrong to use a living person’s name, portrait, or picture for advertising or trade purposes without written consent, and they authorize injunctive relief and damages. The statute is framed as a right of privacy, and New York courts have long described it that way, a characterization that turns out to be decisive here.

The second statute is 47 U.S.C. section 230. Section 230(c)(1) provides that an interactive computer service shall not be treated as the publisher or speaker of content provided by another. That immunity has one pertinent carve-out: section 230(e)(2) states that nothing in the section limits or expands “any law pertaining to intellectual property.” Whether a state right-of-publicity or privacy claim counts as such a law has divided the courts. The Ninth Circuit in Perfect 10, Inc. v. CCBill LLC read the exception to cover only federal intellectual property. The Third Circuit in Hepp v. Facebook, Inc. held that Pennsylvania’s statutory right of publicity does fall within the exception. Ratermann charts a third path.

A single-use license, exceeded

The plaintiff, Patty Ratermann, is a professional model who has worked with companies including Burberry, Garnier, Uniqlo, and Estee Lauder. In July 2020 she signed a single-use license with QuickFrame, Inc. giving QuickFrame the right to use her likeness on Instagram and, in the opinion’s words, “only” Instagram. The scope mattered: the grant was tied to a single platform. According to the complaint, her image then traveled well beyond Instagram, appearing on Avène product pages, on the e-commerce listings of large retailers including Amazon, Walmart, and Ulta, and in physical Walgreens stores. She had not consented to those uses, and she sued.

Her complaint stacked several theories: violation of New York Civil Rights Law sections 50 and 51, false endorsement under the Lanham Act, unfair competition, breach of contract, and fraud, spread across the brand (Pierre Fabre), the video production company (QuickFrame) that had handled the shoot and license, and the retailers. The defendants moved to dismiss on grounds ranging from Section 230 immunity to the limits of the license she had actually granted.

Is a New York publicity claim “intellectual property”?

The pivotal ruling concerned the retailers. As hosts of third-party product listings, Amazon, Walmart, and Ulta invoked Section 230(c)(1), arguing they could not be treated as the publishers of content that brands and sellers supplied. Ratermann countered that her sections 50 and 51 claim fit the intellectual-property carve-out in section 230(e)(2), which would strip the immunity.

Judge Furman rejected that argument. Surveying New York authority, the court concluded that sections 50 and 51 create a statutory right to privacy, not a property right, and therefore do not constitute a “law pertaining to intellectual property” within the meaning of section 230(e)(2). Because the claim was not an intellectual-property claim, the exception did not apply and the immunity held. The court thereby sidestepped the harder federal-versus-state question that divided CCBill and Hepp: it did not need to decide whether the exception reaches state IP, because in its view New York’s statute is not IP at all. On that reasoning the court dismissed the sections 50 and 51 claims against the retailers. Walgreens was dismissed on a separate, pleading-based ground, because the complaint alleged use only at a single California store and offered no more than a conclusory assertion of New York activity.

What survived, and what it means for licensing

The decision was not a clean sweep for the defense. Against Pierre Fabre, the party alleged to have used the likeness beyond the Instagram license, the court allowed the sections 50 and 51 claim to proceed. Pierre Fabre argued that the claim failed because Ratermann had not plausibly alleged it acted knowingly. The court agreed that her knowledge allegations were conclusory, but held that knowledge is not an element of a sections 50 and 51 claim except where the plaintiff seeks exemplary damages, which section 51 conditions on the defendant having “knowingly” used the person’s picture. The claim was therefore dismissed to the extent it sought exemplary damages, but otherwise survived. Her unfair-competition claim against Pierre Fabre was dismissed for failure to allege that the brand knew about or intentionally exceeded the license scope, and her Lanham Act false-endorsement claim failed because she had expressly permitted the use of her likeness for Pierre Fabre products, which made any implied endorsement not false.

The claims against QuickFrame split as well. The court dismissed the publicity claim against the producer because the complaint did not allege that QuickFrame itself participated in the impermissible uses, but it allowed the breach-of-contract claim to proceed, holding that the existence of a contract was adequately pleaded despite a missing counter-signature and that damages were a matter for discovery. The fraud claim was dismissed as insufficiently particular and duplicative of the contract theory.

The practical lesson runs through every ruling. A likeness license is a boundary, and the boundary is defined by its terms. An Instagram-only grant does not authorize product-page placement, and the party that oversteps bears exposure under sections 50 and 51 regardless of intent. At the same time, the intermediaries that merely host the resulting listings enjoy substantial protection, because a New York privacy claim cannot reach them through Section 230’s intellectual-property door.

Open questions

Will the Second Circuit resolve the split? Ratermann is a district-court decision. Whether the Second Circuit adopts its characterization of sections 50 and 51, or follows Hepp, remains open.
Does New York’s newer post-mortem statute change the analysis? New York’s 2021 statute for deceased performers (Civil Rights Law section 50-f) is framed differently, and its interaction with Section 230 has not been settled.
How specific must a platform-scoped license be? The case shows that platform limits are enforceable, but it leaves unresolved how courts will construe ambiguous grants that name no platform at all.
What counts as a retailer’s own conduct? The immunity turned on the retailers being hosts of third-party content; a retailer that actively created or curated the offending image might not be protected.

Implications for brands and businesses

License scope is a hard limit. A grant confined to one platform does not extend to product pages or other channels, and the party that exceeds it faces liability under sections 50 and 51 even without knowledge.
New York is a privacy regime, not a property regime. Framed as privacy, sections 50 and 51 may not qualify as intellectual property for Section 230, which affects both platform immunity and how claims are pleaded.
Retailers hosting third-party listings have strong defenses. Under Ratermann, online marketplaces can invoke Section 230 against New York privacy claims, so plaintiffs should target the party that actually created or placed the content.
Draft the endorsement carve-out carefully. Because express permission for a product defeated the false-endorsement theory, the wording of a likeness grant can foreclose Lanham Act claims even as it leaves privacy claims intact.

Frequently asked questions

What was the license dispute in Ratermann? Model Patty Ratermann licensed her likeness to a video production company for use in advertising Pierre Fabre’s Avene skincare line on Instagram only. She alleged her image then appeared beyond Instagram, on brand and retailer product pages, exceeding the single-platform scope of the license she granted.

Why were the retailers dismissed but the brand not? The court held that New York Civil Rights Law sections 50 and 51 protect privacy rather than intellectual property, so they fall outside Section 230’s intellectual property exception. That gave online retailers like Amazon, Walmart, and Ulta immunity for hosting third-party content. Pierre Fabre, as the party that allegedly used the likeness beyond the license, could not invoke that immunity, and the privacy claim against it survived.

Does this decision conflict with other courts? Yes. The Third Circuit in Hepp v. Facebook held that Pennsylvania’s right of publicity is intellectual property that survives Section 230’s bar. Ratermann reached a different result for New York by characterizing sections 50 and 51 as privacy rather than property, deepening the uncertainty over whether state identity claims can pierce platform immunity.