A federal judge from the Southern District of New York has denied a plaintiff’s Rule 15 motion to amend a complaint in a case where the plaintiff is suing the National Football League and other organizations affiliated with the league for violations of copyright law, New York’s statutory right of privacy, and the Lanham Act, 15 U.S.C. § 1125(a).
In so ruling, the court found that plaintiff Angela Burgin, who sued the NFL on November 15, 2013 and subsequently filed an amended complaint, had failed to present sufficient evidence of the alleged violations.
While she ultimately fell short, the court credited the plaintiff with introducing new allegations in her motion, such as her career as an online marketing expert and providing additional information about the Website at issue in the case, the NFL Women’s Resource Initiative, a micro-site (WRI site) located at https://www.nflplayerengagement.com/wri. Her motion also contained additional allegations regarding the ways in which the WRI site engages with the commercial marketplace and provides new contentions regarding the nature of the alleged copyright violation.
Specifically, the plaintiff alleged that in the summer of 2013 the NFL briefly posted her name, photograph, and biography on the WRI site. The NFL had the plaintiff’s photograph and biography because she submitted these materials to the NFL in connection with the possibility that she would be hired to produce content for the WRI site.
Further, she claimed that some combination of her name, photograph, and/or biography were used without authorization on three different pages of the WRI site: (1) on the landing page, in a rotating thumbnail with other supposed site contributors; (2) on a page with information about all of the WRI site’s contributors; and (3) on a page devoted to information about plaintiff in her capacity as a contributor. These actions constituted copyright infringement, violation of her statutory right to privacy, and violation of the Lanham Act, according to the plaintiff.
In considering a Rule 15 motion to amend, courts need not grant such a motion if the amendment “would be futile.” Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). “Futility turns on whether an amended pleading could withstand a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991).”
The court leaned heavily on the fact that the exposure on the Website was limited.
“The WRI site contains a great deal of substantive content and is comprised of a large number of distinct pages, many of which contain editorial content,” wrote the court. “Two of the three inclusions of plaintiff’s copyrighted material are in the context of the plaintiff as a contributor — the plaintiff is not pictured nor mentioned in connection with substantive editorial content. The final inclusion of the plaintiff’s copyrighted content is included as a rotating thumbnail image on the site’s landing page. Here, the plaintiff’s photograph is again unaffiliated with editorial content. This, combined with the fact that the plaintiff’s copyrighted content was on the site for only three weeks — a short period of time in the life of a website — illustrates that the copyright violation here is de minimus.”
As to the right to privacy and Lanham Act claims, the court took issue with the plaintiff’s argument (mentioned above) that the WRI site is commercial in nature.
“First, plaintiff’s allegation that the site includes advertisement and promotions of goods sold by the NFL and its sponsors relies on a single (informative) article that contains links to external websites where certain products can be purchased. The article itself does not constitute an advertisement for the goods mentioned, nor does it seek to convince readers to buy certain goods,” wrote the court citing Stephano v. News Grp. Publ’ns, Inc., 64 N.Y.2d 174, 184, 474 N.E.2d 580, 485 N.Y.S.2d 220 (1984). “Rather, it is an informative story with links that provide external reference points for readers who want to learn more. The appropriate analogy is to a newspaper article that talks about a new trend and then includes links at the bottom of the article to examples of that trend. Accordingly, this allegation is insufficient — even at this stage of the litigation — insofar as it argues the WRI site is commercial.
“The plaintiff’s allegation that the WRI site is commercial because it may be used by the NFL to gather data for marketing purposes is similarly unavailing. Whether the site is commercial must be determined by looking at the content of the site itself, not at its potential uses for the site’s owner. See, e.g., Gordon & Breach Sci. Publishers S.A. v. American Inst, of Physics, 859 F. Supp. 1521, 1541 (S.D.N.Y. 1994) (explaining that economic motivations alone do not turn the content of an article into commercial speech).
“As for plaintiff’s contention that the WRI site as a whole is commercial in nature because it constitutes ‘content marketing,’ the Court finds that whether the site generally is essentially an ‘advertisement in disguise’ is not ripe for determination at this stage. Even accepting the legitimacy of such allegation, however, plaintiff’s privacy and Lanham Act claims fail because there is no connection between the NFL’s use of the plaintiff’s name and photograph and the site’s purported commercial activity beyond the plaintiff’s wholly conclusory allegations. First, as explained above, the plaintiff’s name and photograph are unaffiliated with substantive editorial content on the site. Second, while the plaintiff contends that her presence drove traffic to the site, there is nothing alleged supportive of this claim. The plaintiff has not, for example, purported to be an Internet celebrity of the sort that might drive traffic to the site simply because she is included on it. The plaintiff’s allegation that she is a ‘social media influencer, spokesperson, and model’ is simply not enough.
“Last, specifically regarding plaintiffs proposed Lanham Act claim, the plaintiff has failed to allege any cognizable injury. While the plaintiff contends that consumers may have been misled and/or confused by the NFL’s inclusion of her name, photograph, and biography on the WSI site, no real injury is alleged. Indeed, it seems highly unlikely — and the plaintiff has not suggested otherwise in any remotely concrete way — that the inclusion of the plaintiff as a contributor to the WSI site for roughly three weeks has in any way injured her reputation as a digital media marketing professional or spokesperson.”
Angela Burgin v. National Football League, et al.; S.D. N.Y.; 13 Civ. 8166 (KBF), 2014 U.S. Dist. LEXIS 61935; 4/30/14
Attorneys of Record: (for plaintiff) Eric Charles Osterberg, Osterberg LLC, Stamford, CT. (for defendants) Bruce P. Keller, LEAD ATTORNEY, Debevoise & Plimpton, LLP (NYC), New York, NY USA; Min Jung Lee, Debevoise & Plimpton LLP, New York, NY.
