PHILADELPHIA – Counsel for a television news anchor argues image-hosting website Imgur is in fact subject to jurisdiction in Pennsylvania, contrary to a recent motion the company filed to be dismissed from litigation.
“Good Day Philadelphia” anchor Karen Hepp has taken issue with social sites like Facebook and Reddit for featuring an image taken without her knowledge on several commercial websites, including one on an ad for erectile dysfunction.
Hepp filed her complaint in the U.S. District Court for the Eastern District of Pennsylvania on Sept. 4, suing Facebook, Imgur, Reddit, Giphy, WGCZ S.R.O. and the owners of various websites and media outlets, named in the lawsuit as Does 1-10, for alleged violation of the state’s Right of Publicity statute.
Hepp alleged that her co-workers informed her two years ago that a security camera caught a snapshot of her in a New York City convenience store. That photo is said to have been used in online ads for erectile dysfunction as well as dating websites and other avenues, according to the lawsuit.
The picture was also included in a Facebook ad that implored users to “meet and chat with single women,” based on the complaint. Imgur allegedly posted the photo with the word “milf,” an inappropriate term related to attractive women with kids.
Reddit allegedly featured the photo in a subgroup called r/obsf.
Hepp also alleged, “The photo was modified and featured on Giphy wherein a video appears in the background of a man – who is hiding behind a glass commercial freezer door and masturbating – to what would appear, from his perspective, to the backside of the plaintiff.”
Lastly, the picture also made its rounds on XNXX in the “milf” gallery.
Hepp asked the court to bar the defendants and their related entities from publishing the photo, and to make them remove the ones that are currently present on their sites. She also wants the defendants to have to show how much money they made from using her image.
Imgur filed a response motion to dismiss itself from the lawsuit for lack of jurisdiction on Jan. 24.
“The claims against Imgur must be dismissed for lack of personal jurisdiction because there is no basis for a Pennsylvania court to exercise either general or specific jurisdiction over Imgur in this matter,” read the motion from Imgur’s counsel, Michael D. LiPuma.
With regards to general jurisdiction, Imgur claimed the plaintiffs did not show that they could be tied to the Pennsylvania-based case.
“Imgur is a Delaware corporation with its principal place of business in San Francisco, California. Imgur has never transacted business in Pennsylvania, advertised in Pennsylvania, or directed any advertisements at Pennsylvania. Imgur has never owned or rented any property, real or personal, in Pennsylvania,” the company stated.
“Imgur has never had any bank accounts in Pennsylvania. Imgur has never carried out business operations of any kind in Pennsylvania. Because defendant Imgur has no continuous or systematic contacts with the forum, this Court may not exercise general jurisdiction over Imgur.”
In reference to specific jurisdiction, the company said the complaint fell short there as well.
“The complaint does not even allege that the photograph in question was taken in Pennsylvania. Indeed, the complaint makes no forum-specific factual averments at all; the only discernible connection with the forum averred in the complaint is that the plaintiff resides here. That is not sufficient for specific jurisdiction,” the dismissal motion stated.
On March 16, counsel for Hepp responded to Imgur and countered that it is subject to legal jurisdiction in Pennsylvania, which has interest in holding court over the matter.
“Pennsylvania has a substantial interest in adjudicating the dispute as it involves an aggrieved public figure who is a Pennsylvania resident. On plaintiff’s side, re-filing her complaint in either Delaware or California would be financially burdensome and unnecessary in light of the other overwhelming factors favoring Pennsylvania’s retention of the matter. The impact on the interstate judicial system is neutral,” according to plaintiff counsel.
“Imgur argues that retaining jurisdiction in Pennsylvania is unfair and unjust because it would have to travel almost 3,000 miles (ostensibly for trial) to Pennsylvania. Not considered in its fairness analysis are the following facts: 1) Imgur has pro hac counsel; 2) this is an Internet case of first impression in this Circuit; 3) Imgur is a globally ranked company; and 4) Plaintiff, a prominent Pennsylvania resident and respected broadcaster, was unquestionably featured on its website under the moniker – “MILF,” a sexist, demeaning and derogatory term against women.”
Hepp’s counsel further countered that Section 230 of the Communications Decency Act “does not bar all of her statutory and common law right-to-publicity claims, which are typically considered state-based intellectual property claims.”
“While it is true that Section 230(c) of the CDA provides a safe-harbor for Internet service providers and website operators for certain kinds of actions, there is another section of the CDA, Section 230(e)(2), wherein Congress expressly provided that “nothing in this section shall be construed to limit or expand any law pertaining to intellectual property,” the plaintiff’s response read, in part.
“The question as to whether Section 230(c) vitiates Section 230(e)(2) with respect to state-based intellectual property claims (i.e., state-based right-to-publicity) is one of first impression in the Third Circuit.”
Hepp’s counsel added her “keen economic interest lies in the commercial value attributed to her identity.”
“If Imgur is immune from liability, it has a disincentive to monitor it website for violations of an individual’s right of publicity. For Imgur, what is important is its bottom line: protecting its brand, promoting its website and accumulating profits from its advertising revenue streams,” according to the plaintiff.
“However, to ensure that the rights of the individuals, such as plaintiff, who have dedicated time, effort, and money into ensuring that their collective goodwill and reputations are being adequately compensated for these undertakings, state intellectual property rights should be included in the intellectual property exception of the CDA. That Imgur can profit and exploit plaintiff’s image with putative immunity is an act of contorted, statutory legerdemain, a magic trick that this Court…can finally reveal it for what it is.”
For counts of violating the Pennsylvania Constitution and the Right to Publicity statute, the plaintiff is seeking a yet-to-be precisely determined award in excess of $10 million.
The plaintiff is represented by Samuel B. Fineman of Cohen Fineman in Cherry Hill, N.J.
The defendants are represented by Dennis Wilson and Tywanda Harris Lord of Kilpatrick Stockton in Beverly Hills, Calif. and Atlanta, Ga., Barry L. Cohen of Royer Cooper Cohen Braunfeld, Michael D. LiPuma of LiPuma Law, Bonnie M. Hoffman and Thomas Nelson Brown of Hangley Aronchick Segal Pudlin & Schiller, plus Robert Jackel of the Law Office of Robert Jackel, all in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-04034
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com