In September, 44 models sued Advance Publications d/b/a Condé Nast and Moda Operandi. According to the models’ complaint, which was filed in a New York federal court, Vogue’s parent company and the high fashion pre-sale site were engaging in a “pervasive” scheme to use images of them – from photos and videos of them walking in Fashion Week runway shows to images of them backstage at such shows – without their authorization on Vogue’s website in order “to steer traffic to [advertiser] Moda Operandi’s website for its sole economic gain.”
The Next Management-represented models alleged that they are “routinely hired by companies for their modeling services to sell products,” and as a result, when Condé Nast and Moda Operandi include links that enable consumers to “Shop This Look” next to images of them on the runway, “the general public is likely to be, and has been, deceived and/or confused into thinking that the plaintiffs have provided their respective sponsorship or approval to the services offered by Moda Operandi and Vogue.”
In addition to setting out claims of false endorsement, in which they accuse Condé and Moda of using images of them in a way that consumers are likely to be misled about that person’s sponsorship or approval of a product or service, the models also claim that Vogue and Moda Operandi have violated New York Civil Rights Law sections 50 and 51, which protect against the unauthorized use of another’s likeness for a commercial purpose.
Now, both Condé Nast and Moda Operandi are urging the court to toss out the suit on the basis that the models – including Anok Yai, Grace Elizabeth, Grace Hartzel, Linsiey Montero, Anna Cleveland, and Binx Walton, among others – have failed to sufficiently make their case.
Setting the stage in its January 15 motion to dismiss, Condé Nast states that the matter at hand centers on its coverage of the Spring/Summer 2020 Ready-to-Wear collections and in particular, “on the small red box in the lower corner of some illustrative runway photos” that contains “the words ‘Shop This Look’” and that links to Moda Operandi’s e-commerce site. According to Condé, by publishing “photographs of [the professional model plaintiffs] doing their jobs (i.e., modeling on the runways at the featured fashion shows)” alongside the little “Shop This Look” boxes, the plaintiffs argue that Vogue’s “editorial” content is “transmuted into commercial speech,” and as a result, runs afoul of the Lanham Act and New York’s right of publicity statute.
Such a premise is “erroneous,” Condé argues, as courts have held that “close proximity” between editorial content (such as runway show reviews and corresponding imagery) and sponsored content “does not overcome the well-established First Amendment protection afforded to news and commentary under … the Lanham Act and the New York Civil Rights Law.” Here, First Amendment protections prevail, as the “use of a plaintiff’s name or image in an expressive work (including news and commentary) is protected … unless it (1) ‘has no artistic relevance to the underlying work whatsoever’ or (2) ‘explicitly misleads as to the source of the content of the work.”
The models do not plead either element, the media giant argues because “as models at the actual fashion shows featured in Vogue Runway’s editorial coverage, [their] images were obviously relevant to that coverage.” And since the models’ images are relevant to Vogue’s runway show features, its use of the images of them “is unprotected only if [such use] ‘explicitly misleads [consumers].’” The plaintiffs fail on that prong, as well, Condé claims, as they “do not (and cannot) allege that Vogue made any explicit statement indicating that [the models] endorsed Moda or its services,” since it does not mention Moda Operandi’s name at all in connection with the “Shop This Look” functionality.
At the same time, the models “do not (and cannot) allege that Vogue did anything whatsoever to present them in a false light,” or to give rise to a likelihood that consumers would be misled or confused about whether the models are – or in this case, are not – endorsing Moda and/or its products.
In fact, Condé contends that “‘no reasonable trier of fact could reach’ the conclusion that images of models walking the runways at designer fashion shows – included to illustrate Vogue’s commentary on the new designs – somehow reflects that each model endorses adjacent advertising.” (Condé notes that the models do not claim that it is using their image to imply an endorsement of other ads, such as ones featuring Levi’s jeans). To the contrary, “Plaintiffs are professional models, paid to walk the runway at fashion shows, where the whole point is to be photographed wearing the designers’ works, and it is understood by all that those photographs would appear in editorial publications alongside advertisements.”
“None of the [models] could plausibly argue that there is a false association between them and the designers’ fashion they were modeling – they indisputably were hired to display those fashions,” per Condé, and the “incidental commercial aspects of their appearances in the shows, as well as in the pages of Vogue, are a known and obvious by-product of what they do.” In other words, the models are trying to – but cannot – have it both ways: they cannot engage in their profession, while also seeking to limit the use of photos that depict them engaging in that profession.
(Condé also notes that “fashion journalism (like all journalism) frequently includes images of people alongside advertisements for products [and] no one could reasonably suggest that every image of a personal in the editorial section of a newspaper, magazine or TV report is a statement about the person’s endorsement of all products advertised alongside the report.”)
As such, the model plaintiffs’ false endorsement and right of publicity claims fail, per Condé.
Moda’s Motion to Dismiss
Meanwhile, in a separate but related motion to dismiss, Moda Operandi similarly asserts that the plaintiff models fall short in making their false endorsement and right of publicity claims. According to Moda, the models do not “plausibly allege that an appreciable number of ordinarily prudent consumers, looking for or buying designer apparel on Moda’s e-commerce website, are likely to mistakenly believe that the plaintiffs endorsed or sponsored, or are associated with Moda or its goods.”
Why is that? Well, for one thing, Moda asserts that its site depicts “hundreds of models in the same manner: wearing the apparel of Moda’s designers, [n]one of [whom] are identified by name or other biographical information, and, most of the time, their faces are obscured.” What consumer “would believe [the models endorsed Moda] when their names are not mentioned?,” the company asks in its filing. “What company would seek to create an impression of endorsement by a model and then obscure her face, even some of the time?”
Beyond that, Moda takes issue with the plaintiff models’ claim that “Moda’s typical consumers will understand the use of her image to imply source, sponsorship, or endorsement of Moda or its products,” arguing that “consumers who shop on e-commerce sites are accustomed to seeing images that show people modeling the clothing and other items offered for sale.” The photos at issue here “are no different,” Moda argues, as they are “merely anonymous, generic photos that allow consumers a pre-purchase view of how the high-fashion apparel looks when worn on the runway or at a trunkshow.”
In short: consumers are not going to be confused into believing that the models are endorsing or associated with Moda Operandi and/or its e-commerce website.
Additionally, in regards to the models’ right of publicity claim, both Condé Nast and Moda Operandi argue that “the majority of the forty-three [models’ claims] under Sections 50 and 51 of New York’s Civil Rights Law must be dismissed because these [models] are not domiciled in New York and therefore, do not have right of publicity claims under the New York statute.” To be exact, 17 of the models allege that they are New York residents, while the remaining 26 reside outside of New York.
With the foregoing in mind, Moda Operandi and Condé assert that the models’ claims under the Lanham Act “are not plausible and should be dismissed,” and the claims by the twenty-six models not domiciled in the State of New York should be dismissed. Still yet, they argue that “the Court also should decline to exercise supplemental jurisdiction over any remaining right of publicity claims and dismiss the Complaint in its entirety.”
*The case is Champion et al., v. Moda Operandi, Advance Publications d/b/a/ Conde Nast, 1:20-cv-07255 (SDNY).