Use of Porn Star Images in “Romance Fraud” Dating Profiles Fails to Support Trademark and False Advertising Claims

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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CaptureThe plaintiff in Avalos v. IAC/Interactive Corp. called it “one of the biggest conspiracies ever executed on the internet” — the unauthorized use of images of adult film stars in fake online dating profiles. But in an opinion issued October 30, 2014, Judge Jesse Furman of the Southern District of New York held that trademark law was not the right way to go about solving this problem. The complaint was dismissed in its entirety.

The Romance Fraud Scam

According to the complaint, con artists such as the Nigerian “Yahoo Boys” misappropriate online images of webcam models and adult film stars (with their clothes on, for the most part) in order to create fake profiles on internet dating sites. These fake profiles lure unsuspecting internet daters into “Romance Fraud” scams, which involve establishing a fake online relationship and then asking for money. The FBI estimates that the average victim loses between $15,000-$20,000 in these scams.

Meanwhile, the complaint alleges, the dating sites look the other way. Why? Because — let’s face it — models and porn stars are just a bit better looking than the rest of us. Having their images associated with the sites allegedly drives up membership and therefore increases profits. In fact, the complaint asserts, some dating sites actively promote and advertise what they know or suspect to be fake – but very attractive – profiles.

Melissa Midwest’s Claims

The initial complaint was filed in late 2013 against IAC (the parent company of Match.com and other popular dating sites) by internet model Yuliana Avalos, on behalf of herself and “all individuals” whose likenesses had been used without permission in fake dating profiles. In early 2014, the complaint was amended to substitute as plaintiffs the adult film actress Melissa Harrington (aka Melissa Midwest), whose photos appear in many fake profiles, and Meltech, Inc., the company that owned the rights to those photos.  The complaint alleged trademark infringement, copyright infringement and various other counts.

One problem, though. It appears that nobody informed Ms. Harrington that she was the lead plaintiff.  In March 2013, Harrington objected to her inclusion in the suit, and Meltech proceeded without her, relying on the rights Harrington had previously assigned to Meltech by contract.  On June 12, 2014, IAC filed a motion to dismiss.  Meltech, apparently only then realizing that it didn’t actually own any registered copyrights in the Harrington images, dropped its copyright infringement counts shortly thereafter. On October 30, 2014, the Court issued its opinion on the remaining counts.

The Court Dismisses the Lanham Act Claims

The Court first addressed Meltech’s claim under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), which alleged that the unauthorized use of the photographs by the dating sites amounted to “reverse passing off.”  In other words, the dating sites attributed the photographs to the wrong source. The court held that such use of the Lanham Act to substitute for an attribution right was precisely the type of “end run around copyright law” that had been conclusively rejected by the Supreme Court in Dastar Corp. v. Twentieth Century Fox. Moreover, the Court held, any claim by Meltech alleging false endorsement or association must also fail because such claims would be anchored in Ms. Harrington’s right of publicity, a right Meltech did not claim was transferred to it by Harrington (and which in any case is inalienable under Nebraska law, where Meltech is located).

Meltech also alleged a claim for false advertising pursuant to 15 U.S.C. § 1125(a)(1)(B), which was premised on the assertion that IAC “falsely designat[ed] that Melissa Midwest was and is a member” of its dating sites. The Court, assuming without deciding that the dating websites qualified as “advertising,” nevertheless held that Meltech had not adequately pled harm to its commercial interests or a plausible causal connection between such harm and IAC’s actions.  Meltech did not allege, for example, that consumer deception arising from the dating websites led anyone to “withhold trade” from Meltech. Therefore, this claim was also dismissed.

RICO Claim “Failed to Pass the Laugh Test”

The Court stated that Meltech’s civil RICO count, under 18 U.S.C. § 1961, “failed to pass the laugh test.”  Judge Furman noted that “when factors other than the defendant’s fraud are an intervening direct cause of a plaintiff’s injury, that same injury cannot be said to have occurred by reason of the defendant’s conduct.” Here, Meltech had in fact included an intervening direct cause in its complaint: the fraud allegedly perpetrated by non-party “criminals in foreign countries.”  Therefore, this claim could not survive.  Moreover, Meltech’s claim for “aiding and abetting fraud” also failed because Meltech – which was not itself fooled by any fake profiles – failed to allege that it relied on any fraudulent representation.

State Law Claims Preempted by Copyright Act

Finally, the Court also dismissed plaintiff’s state law claims for unjust enrichment and conversion.  Because the gravamen of these claims was the unauthorized publication of copyrighted images, they were preempted by federal copyright law. Consequently, the Court determined that it need not decide whether any of these claims were also barred by Section 230 of the Communications Decency Act.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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