In the last few months, Instagram influencers have brought a number of lawsuits against online media publisher PopSugar.  Here are some updates on these cases.  

The lawsuits arise out of a series of events from 2017, during which PopSugar repurposed influencer content on its own site.  All five cases assert similar allegations.  Instagram influencers used an online service called that allowed their followers to shop the looks they shared on Instagram. The service would link a follower to products the influencer shared, and if the follower ultimately made a purchase, the influencer earned a commission through the site. 

During the spring of 2017, some influencers discovered that PopSugar was allegedly displaying their content without obtaining their consent.  The plaintiffs alleged that when PopSugar repurposed the content for its own site, PopSugar also replaced the links that allowed the influencers to earn a commission with links that reverted the commissions back to PopSugar.  According to the lawsuits, PopSugar’s co-founder and CEO acknowledged the feature and apologized in a Tweet in April 2018. 

As a result, influencers sued, asserting claims based on copyright infringement, right of publicity, false advertising and unfair competition, and more. 

This week, a few of the cases saw new developments.  Judge Gilliam of the U.S. District Court for the Northern District of California heard oral argument on PopSugar’s motion to dismiss in one of the class actions (Batra v. PopSugar), held case management conferences on two others (Memari v. PopSugar and O’Brien v. PopSugar), and held a hearing on a motion to remand to state court in O’Brien.

In Batra, PopSugar argued that the plaintiff had failed to prove that she registered the copyrights before filing suit.  Counsel for the plaintiff argued that the information wasn’t required as a matter of law to survive a motion to dismiss. 

In O’Brien, plaintiffs argued that the case should be remanded to state court because their claims under California’s right of publicity statute are not preempted by copyright law. PopSugar asserted that the plaintiffs’ claims are actually just veiled copyright claims preempted by the Copyright Act, and that the preemption argument is enough to remove the case to federal court.