Advertising Law Blog

Ms. Batra, an “Influencer,” has over 200,000 followers on Instagram. The facts of this case center on the monetization of “influence” on social media. Like many other influencers, Ms. Batra used shopping platform LIKEtoKNOW.it to monetize her Instagram posts. This shopping platform allows Ms. Batra’s followers to purchase clothing and accessories she is seen wearing in her Instagram posts, with Ms. Batra receiving a portion of the revenue generated from sales.

Ms. Batra alleges that PopSugar attempted to capitalize on Ms. Batra and other influencer’s social media following by copying and posting thousands of influencers’ Instagram images to its own website without authorization. These images, Ms. Batra alleges, were posted on certain unauthorized PopSugar subpages for each influencer. In reposting the images, PopSugar allegedly removed the links to LIKEtoKNOW.it, thereby impeding the influencers’ ability to monetize their content, and replaced those links with links to a competing shopping platform, ShopStyle.  In addition, the complaint alleges that PopSugar removed certain copyright management information in the form of an Instagram sidebar prior to reposting. Such information includes certain identifying information about the author of the post. Ms. Batra alleged that removal of this information constitutes a violation of the DMCA.

PopSugar’s co-founder and CEO Brian Sugar made a statement on Twitter, stating that the pages were intended for internal use only, and that they “should have been password protected so only PopSugar employees could use the feature.” Sugar also stated that PopSugar received $2,695 from the posts and promised to pass that money onto the appropriate influencers.

PopSugar sought to have the claims dismissed. U.S. District Judge Haywood S. Gilliam Jr. rejected PopSugar’s motion, instead finding that at this stage of the litigation, Ms. Batra has sufficiently alleged her claims under the DMCA and the Lanham Act. As such, the case will presumably continue.

Takeaway: As more and more social media users continue to foray into the world of “influencing,” issues surrounding the monetization and IP ownership of content are sure to become more prevalent. As the law attempts to catch up with evolving technologies, social media users and marketers should keep up to date with significant interpretations of the law with respect to new technologies to ensure compliance and avoid litigation.