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Roberts v. Bliss

United States District Court, S.D. New York

January 24, 2017

SHOSHANA ROBERTS, Plaintiff,
v.
ROB BLISS, ROB BLISS CREATIVE, LLC, and TGI FRIDAY'S INC., Defendants.

          ORDER & OPINION

          RONNIE ABRAMS, United States District Judge.

         Plaintiff 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?"

         Roberts, "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.

         I. BACKGROUND[1]

         Roberts 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), https://www.youtube.com/watch?v=b1XGPvbWn0A) (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.

         10 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!, [2] 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. ¶ 31.

         The 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.

         Roberts 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.

         In 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), http://time.com/3744418/tgi-fridays-catcalling-parody/); 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.

         A few screen shots of stills from the videos show the comparison between 10 hours and the advertisement:

         (Image Omitted)

         Plaintiff 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.

         II. STANDARD OF REVIEW

         To 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 (2007)).

         "[T]he 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. ΒΆ 22, the advertisement, Am. Compl. ...


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