Champion v. Moda Operandi, Inc.

561 F.Supp.3d 419

Abby CHAMPION et al., Plaintiffs,

v.MODA OPERANDI, INC., Advance Publications, Inc. d/b/a Conde Nast, Advance Magazine Publishers, Inc. d/b/a Conde Nast, Defendants.

No. 20 Civ. 7255 (CM)

United States District Court, S.D. New York.

Signed September 22, 2021

Edward Charles Greenberg, Edward C. Greenberg, LLC, White Plains, NY, for Plaintiffs.

Edward Henry Rosenthal, Elizabeth Ruth Tuttle Newman, I, Kimberly M. Maynard, Frankfurt Kurnit Klein & Selz, P.C., New York, NY, for Defendant Moda Operandi, Inc.

Adam Ivan Rich, Elizabeth A. McNamara, Davis Wright Tremaine LLP, New York, NY, for Defendants Advance Publications, Inc., Advance Magazine Publishers, Inc.

MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS

McMahon, District Judge:

The Plaintiffs in this case are runway models. They are hired by fashion designers to exhibit items of clothing from the designers’ latest collections. They do this by walking down a runway, in a glare of flashbulbs, wearing the designers’ "looks," while an audience consisting of clothing retailers, journalists and fashion "influencers" watches, applauds, takes notes – and decides what and what not to buy.

The ultimate purpose of these runway shows is to sell the designer's clothes. But the direction of fashion from season to season is also deemed worthy of coverage in major newspapers (The New York Times, The Wall Street Journal ), magazines (Vogue, Harper's Bazaar ), and trade publications (Women's Wear Daily ). All of these news outlets, in both their print and internet formats, feature photographs or videos of the "mannequins" (as the French call the models) parading in the designer's clothing. These pictures are generally accompanied by commentary and criticism about both the clothing and the designer's "show," as well as reaction from the audience to various designs. Through the work of these publications, one can chart the evolution of fashion over time.

Among the most important publications to feature photographs and commentary about couture and designers’ new collections is Vogue – a magazine occupying such an iconic place in the fashion world that it and its celebrity editor, Anna Wintour, could be lampooned to hilarious effect in the hit movie, "The Devil Wears Prada." It is a truth universally acknowledged – so universally as to be worthy of judicial notice – that designers long to have their work featured in Vogue, and that the models who make their living exhibiting designer clothes aspire to have their photographs appear in the magazine – or, today, on its website or social media account. So why, exactly, are Plaintiffs suing Vogue over what every model wants – having her face and form appear in Vogue or on its website?

Well, Vogue subsists, not on subscription revenue, but on the money it receives from ad sales. Among Vogue's advertisers is an e-commerce site called Moda Operandi ("Moda"). Moda sells designer fashion – not knock offs or cheap imitations of designer fashion, but the real thing. And Moda and Vogue have an arrangement whereby consumers who are watching snippets from a particular designer's runway show on Vogue's website, and who see an item that they simply cannot live without, can click on a hyperlink and be transported to an entirely different web page – Moda's – where they can purchase the item.

Plaintiffs believe that they should be paid by Vogue for the use of their photographs if the screen on which their visages are exhibited includes a link to Moda, a particular retailer of high fashion clothing. And they believe that they should be paid by Moda for the use of their photographs, without regard to Vogue's use of them. Their beef is not that their images are being used for the purpose of selling merchandise, but rather that they are being used for the purpose of selling merchandise over Moda.

This sounds like a classic "right of publicity" case brought under New York's right of publicity law, N.Y. Civ. Rights Law § 50, which prohibits – for New York residents only – the "use[ ] for advertising purposes, or for the purpose of trade, the name, portrait or picture of any living person without first having obtained the written consent of such person."

But apparently the plaintiffs – the majority of whom lack any claim under New York's right of privacy law – prefer a federal forum. So, in what can only be characterized as a blatant effort to federalize a state law claim and extend its reach to individuals who have no rights under this state's law, plaintiffs allege that the use of footage and photographs from their runway appearances on a web page that contains a hyperlink to Moda was designed to "deceive" consumers into thinking that these 43 models endorse or sponsor the Moda as a source for the purchase of designer clothing.

Both defendants Advance Publications, Inc. and Advance Magazine Publishers, Inc. (hereinafter referred to as the Conde Nast Defendants, Conde Nast being the parent company of the entities that publish Vogue) and Moda move to dismiss the complaint – a prolix document consisting of 652 paragraphs of allegations accompanied by 754 pages of screen shots of web pages on which various of the plaintiffs are alleged to appear. But the viability of a pleading is not dependent on its length. The issue on these motions to dismiss is whether, amid all that verbiage and all of those photographs, any facts (not conclusions) are pleaded that lead plausibly to an inference that the defendants’ use of photographs from the runways shows in which plaintiffs appeared violated the Lanham Act.

BACKGROUND

I. Factual Background

A. The Parties

Plaintiffs are 43 professional models who allege that they are well-known throughout the United States and in other countries around the world. (Compl. ¶ 293.) At the time the complaint in this action was filed, 17 of the plaintiffs resided in New York. The remaining 26 plaintiffs resided elsewhere, some in the United States and some outside of the United States. (Compl. ¶¶ 1-43.)

Defendants Advance Publications, Inc. and Advance Magazine Publishers, Inc., are owned by the Conde Nast Corporation. They are the Conde Nast subsidiaries that publish Vogue – among the world's most famous fashion magazines – and its website, vogue.com. (Compl. ¶¶ 309, 310.) Both defendants are Delaware corporations with their principal places of business in New York.¹ Defendant Moda Operandi, Inc. ("Moda") is "an online storefront for consumers for various locations to purchase high-fashion designer items that are, inter alia, seen on the runway." (Compl. ¶ 299.)

Moda is a Delaware corporation with its principal place of business in New York. (Compl. ¶ 44.) Moda advertises in Vogue and on its website. (Compl. ¶ 489.)

B. Unauthorized Use of Plaintiffs’ Images

Plaintiffs allege that both Vogue and Moda have published images of them modeling clothing on various runways without their consent – Moda, by publishing their images at all, and Vogue, by publishing them on web pages that include hyperlinks to Moda's website. The particulars are as follows:

In September 2019, the on-line edition of Vogue published an editorial feature about the 2020 Spring Ready-to-Wear collections ("Vogue Runway Editorial"), which included coverage of major designer fashion shows (including Dolce & Gabbana, Ferragamo, Versace, Carolina Herrera, Proenza Schouler, Loewe, Marc Jacobs, Poco Robanna, and Valentino). The work of over 50 designers is featured in the Runway Editorial.

On the "home" page of the Runway Editorial, there appear the names of these designers. By pressing on the name of a particular designer, the visitor to vogue.com is taken to Vogue's coverage of that particular designer's Spring 2020 Ready to Wear runway show. Each designer's segment of the Runway Editorial consists of (1) its own "home" page, or cover page, into which is embedded a link to a slide show consisting of photographs from the designer's Ready-to Wear runway show, and (2) the slide show itself. On each designer's home page the reader would see a one or more photographs (but generally only one) showing a sample item from the collection, accompanied by editorial commentary about the collection and some additional photographs at the bottom of the page. The images in the slide show consist of photographs of models, including Plaintiffs, walking the runway in the featured designer's show.

Plaintiffs have no complaint about Vogue's use of photos of their runway appearances in the Runway Editorial. Indeed, it would be hard to deem any such allegation plausible, since fashion designers covet coverage of their new collections as exhibited on the runway, and Vogue is among the premiere outlets for fashion advertising. Interestingly, Plaintiffs plead no facts about the terms of their contracts with the designers who hire them to work the runway; the court acknowledges the very real possibility that those contracts govern how images captured from a fashion show are used.

What Plaintiffs complain about is the fact that images appear on pages that are hyperlinked from Vogue's website to Moda's. There are two such links:

(1) The "cover" page for each designer's collection – the page through which a reader accesses the runway slide show – displays one or more selected photos from that designer's Spring 2020 Ready to Wear runway show. (McNamara Decl. Ex. C.² ) For example, in the "cover page" photograph shown below, the model (plaintiff Martinez) is wearing clothing designed by Isabel Marant. The link to the slide show is superimposed over the featured photograph. Below that photo is a hyperlink with the text "Buy on Moda Operandi" written in very small print. A visitor who clicks on this link is taken off Vogue's website and is directed to a "trunk show" page on Moda's website that exhibits the clothing of this particular designer. (Compl. ¶¶ 347, 348.)

(Compl. Ex. 20.)

Also below the "cover page" photograph on all 50+ designers’ "home" pages is the text

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