United States District Court, S.D. New York
ORDER & OPINION
ABRAMS, United States District Judge.
Shoshana Roberts, an actress, starred in a video highlighting
street harassment of women that went "viral" and
has been seen over 41 million times on the internet. Without
her knowledge or consent, the video was licensed by the maker
of the video, Defendants Rob Bliss and Rob Bliss Creative,
LLC (collectively "Bliss"), to an advertisement
agency, which used it to create an advertisement for
Defendant TGI Friday's Inc. to promote its appetizers
(hereinafter the "advertisement" or
"ad"). The ad superimposes graphic images of
life-sized appetizers over Plaintiffs entire image in the
video. The appetizers are seen moving through the streets of
New York City, with men shouting things like
"Nice!" and "How you doing?" at the food,
as they did to Roberts in the original video. The ads'
message: "Nobody likes a catcaller . . . But who can
blame someone for #Appcalling?"
"humiliate[ed]" by the ad that "belittled
women and the very cause which Plaintiff was promoting,
" Am. Compl. ¶ 6, brings this action against
Defendants for misleadingly implying that she endorsed the
TGI Friday's advertisement and its appetizers in
violation of Section 43(a) of the Lanham Act, along with
various state law claims. Defendants have moved to dismiss
the Amended Complaint for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). The Court agrees
with Defendants that Plaintiff has failed to state a claim
for false endorsement under the Lanham Act because she has
not plausibly alleged that the advertisement contains a
misleading representation that she endorsed a product, or
that the ad is likely to cause consumer confusion as to her
sponsorship of it. Because the Court dismisses all claims
over which it has original jurisdiction, it declines to
exercise supplemental jurisdiction over Plaintiffs remaining
state law claims.
is a professional actress residing in Queens, New York. Am.
Compl. ¶ 8. She is the subject of "10 Hours Walking
in NYC as a Woman, " a video that "went viral"
on the internet in October 2014. Am. Compl. ¶ 22 (citing
Rob Bliss Creative, 10 Hours of Walking in NYC as a
Woman, YouTube (Oct 28, 2014),
(hereinafter "10 Hours")). Roberts became involved
in the project by responding to a solicitation posted by
Bliss on Craigslist searching for an actress to appear in a
public service announcement regarding street harassment of
women. Am. Compl. ¶ 17.
Hours follows Roberts as she walks the New York City streets
in black jeans and a black crew neck t-shirt. Am. Compl.
¶ 17, 21. Bliss used a hidden camera to film the
comments, or "catcalls, " directed at Roberts by
strangers on the street between September 29 and October 1,
2014. Am. Compl. ¶ 21. Roberts asserts that she
"actively assisted Bliss in deciding how and where to
walk, and how to film without the camera being noticed.
Plaintiff at all times used her skills as an actress to
create a realistic impression of an ordinary woman walking
through the streets of New York." Am. Compl. ¶ 20.
After the filming, Bliss returned to his home in Michigan,
and with a friend, edited the footage to create a one minute
and fifty-six second video. Am. Compl. ¶9, 22. Bliss
posted 10 Hours on YouTube on or about October 27, 2014. Am.
Compl. ¶ 22. 10 Hours ends with a solicitation for
contributions to Hollaback!,  which Roberts alleges she was
unaware would be included. Am. Compl. ¶22. The video
also "prominently features" Bliss' name and
third-party advertising placed by YouTube, for which Bliss
receives 30% of the advertising revenue. Am. Compl. ¶
video has been viewed over 41 million times on Bliss'
YouTube channel alone, and according to Roberts it made her
"a public figure and celebrity virtually
overnight." Am. Compl. ¶ 30. "Plaintiff was
inundated with requests for comment by the mainstream media.
Plaintiff quickly became widely known throughout the United
States and world because of the Video." Am. Compl.
¶ 24. Plaintiff participated in interviews even though
she received death and rape threats. Am. Compl. ¶ 29.
alleges that she was falsely told that "nobody was being
paid" for their work on the video and that she was
"induced" to "participate in the project with
no guaranteed compensation." Am. Compl. ¶ 1, 19.
Plaintiff also alleges that Bliss told her that "he
hoped the video would 'make it big' on the Internet
and that, if it did, he would be able to compensate
her." Am. Compl. ¶ 19. Bliss did not tell Plaintiff
that he intended to use her image on his website to advertise
his business or to sell or license the video for commercial
purposes. Am. Compl. ¶ 19. On November 19, 2014,
Plaintiff sent an e-mail to Bliss noting that "we
didn't have a written contract, but I do remember you
saying that you hoped this video would make it big and that
you could pay me." Am. Compl. ¶ 26. Roberts asked
Bliss to "use [his] judgment to determine what [he]
thought was fair" compensation. Am. Compl. ¶ 26.
Bliss refused to pay Plaintiff anything and responded that
only he should "get the revenue." Am. Compl. ¶
26. Hollaback! sent Roberts a check for $200 for a
"PSA" on November 26, 2014. Am. Compl. ¶ 27.
Roberts had not requested the check and did not intend to
accept it as full compensation. Am. Compl. ¶ 27.
February 2015, without Roberts' knowledge, Bliss licensed
10 Hours to Made Movement, an advertising agency based in
Colorado, which used the video to create an advertisement for
TGI Friday's, a New York corporation with its principal
place of business in Texas. Am. Compl. ¶¶ 12, 13,
33. The license agreement "represented that [Bliss] had
the 'sole right and authority' to grant all rights to
the Video, including the right to use all images in it."
Am. Compl. ¶¶ 33, 34. Made Movement created a
fifteen-second version and a thirty-second version of the
advertisement. See Am. Compl. ¶ 34
(incorporating by reference Laura Stampler, People Are
Not Happy About TGI Friday's Viral Catcalling
Parody, Time (March 13, 2015),
Decl. of Craig B. Whitney, Ex. A. The advertisement uses
parts of the 10 Hours video, including background images of
New York City streets, and the catcalls that were directed at
Roberts. The ad covers Plaintiffs image with digital
renditions of oversized Friday's appetizers, including
mozzarella sticks, potato skins, and pot stickers.
screen shots of stills from the videos show the comparison
between 10 hours and the advertisement:
alleges that although she "was happy to promote the
original video and its message, all of that changed when she
suddenly learned that Bliss, Made Movement and TGI
Friday's had modified her image by superimposing French
fries and mozzarella sticks over her face and using her
creation to advertise appetizers in a way that belittled
women and the very cause which Plaintiff was promoting."
Am. Compl. ¶ 32. Roberts further alleges that "a
very substantial number of consumers were led to believe or
understood that plaintiff had authorized TGI Friday's to
use her persona and creative content to advertise their
appetizers, that she approved of the message contained in the
ads and that she implicitly endorsed TGI Friday's
appetizers." Am. Compl. ¶ 35.
STANDARD OF REVIEW
survive a motion to dismiss, a plaintiff must plead
"factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). "[O]nly a complaint that states a
plausible claim for relief survives a motion to
dismiss." Id. at 679. Although a Court must
accept a complaint's allegations as true, "[a]
pleading that offers 'labels and conclusions' or
'a formulaic recitation of the elements of a cause of
action will not do.'" Id. at 678 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545
complaint is deemed to include any written instrument
attached to it as an exhibit or any statements or documents
incorporated in it by reference." Int'lAudiotext Network, Inc. v. Am. Tel. & Tel. Co.,62 F.3d 69, 72 (2d Cir. 1995) (quotation marks omitted).
"If a document relied on in the complaint contradicts
allegations in the complaint, the document, not the
allegations, control, and the court need not accept the
allegations in the complaint as true." Poindexter v.
EMI Record Grp. Inc., No. 11 CIV. 559, 2012 WL 1027639,
at *2 (S.D.N.Y. Mar. 27, 2012); see Int'l Audiotext
Network, Inc, 62 F.3d at 72. The Complaint incorporates
10 Hours, Am Compl. ¶ 22, the advertisement, Am. Compl.