In 2022, Patty Ratermann, a model, sued various online retailers and others for claims arising out of the use of her likeness in connection with the sale of skincare products online and in brick-and-mortar retail stores. Ratermann alleged that she had entered into a single-use license agreement with a video marketing company allowing for the use of her likeness on Instagram only and that, with respect to the online retailers, the use of her likeness to advertise skincare products on the online retailers’ websites exceeded the scope of that license and amounted to a violation of her right to privacy and/or publicity pursuant to NYCRL Sections 50 and 51.

NYCRL Section 50 provides that “[a] person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.” NYCRL Section 51 establishes civil remedies, including injunctive relief and damages, for violations of Section 50.

The online retailer defendants moved to dismiss Ratermann’s NYCRL claims, asserting, among other things, that Section 230 of the CDA immunized them from liability. The CDA provides, inter alia, that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  However, it also contains an exception for intellectual property, stating that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.”  According to the online retailer defendants, the CDA barred Ratermann’s NYCRL claims because the online retailer defendants satisfied all of the necessary elements for CDA immunity, and the claims did not fall within the CDA’s exception for intellectual property claims as, instead of protecting intellectual property, Sections 50 and 51 establish a statutory right to privacy. Ratermann disagreed, arguing, among other things, that the CDA did not preclude her NYCRL claims because a claim for violation of the right of publicity under Sections 50 and 51 constitutes an intellectual property claim.

In rejecting Ratermann’s argument, the court held that “New York courts have long construed Sections 50 and 51 to provide a statutory right to privacy, not property[,]” and that the right of publicity is simply a part of the right to privacy covered by the NYCRL. According to the court, the First Department’s “foundational decision” in Gautier v. Pro-Football, Inc., 106 N.Y.S.2d 553 (1st Dep’t 1951)—in which the First Department concluded that “it is the injury to the person not to the property which establishes the cause of action”—was “especially instructive” and, together with other cited authorities, left “no doubt that a claim under Sections 50 and 51 of the New York Civil Right[s] Law sounds in privacy, not intellectual property, and thus does not fall within the intellectual property exception to Section 230.”

Why it matters: As noted by the court, this appears to be the first time a court has addressed whether claims under Sections 50 and 51 of the NYCRL fall within the CDA’s intellectual property exception.