Champion Et Al v. Moda Operand 27

Case 1:20-cv-07255-LAK Document 20 Filed 01/15/21 Page 1 of 41
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
X
ABBY CHAMPION, et al., :
: 1:20-CV-07255-LAK
Plaintiffs, :
:
- against - : ORAL ARGUMENT REQUESTED
:
MODA OPERANDI, INC., ADVANCE :
PUBLICATIONS, INC. d/b/a CONDE NAST, :
ADVANCE MAGAZINE PUBLISHERS, INC., :
d/b/a CONDE NAST, :
:
Defendants. :
X
MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANTS ADVANCE PUBLICATIONS, INC.’S AND
ADVANCE MAGAZINE PUBLISHERS, INC.’S MOTION TO DISMISS
DAVIS WRIGHT TREMAINE LLP
Elizabeth A. McNamara
Adam I. Rich
1251 Avenue of the Americas
21st Floor
New York, New York 10020
Tel: (212) 489-8230
Email: lizmcnamara@dwt.com
adamrich@dwt.com
Attorneys for Defendants Advance Publications,

Inc. d/b/a Condé Nast, Advance Magazine
Publishers, Inc. d/b/a Condé Nast
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .....................................................................................................1
FACTUAL BACKGROUND ..........................................................................................................4

A. The Parties ...............................................................................................................4
B. Vogue’s Spring 2020 Ready-to-Wear Editorial Feature ..........................................5
C. The Complaint .......................................................................................................10
ARGUMENT .................................................................................................................................11
I. THE COMPLAINT FAILS TO STATE A CLAIM FOR FALSE

ENDORSEMENT UNDER THE LANHAM ACT...........................................................12
A. The Rogers Test Applies to Vogue’s Editorial Feature .........................................13
B. Use of Plaintiffs’ Images Is Artistically Relevant to the Editorial Feature ...........15
C. Vogue Did Not Explicitly Mislead as to the Source of the Content ......................16
D. Plaintiffs Fail to Allege Any False or Misleading Statement of Fact ....................17
1. Plaintiffs Do Not Allege That Vogue Made Any False Statements ......... 17
2. Plaintiffs Have Not Alleged Any Likelihood of Consumer
Confusion .................................................................................................. 20
II. PLAINTIFFS’ STATE LAW CLAIM SHOULD BE DISMISSED FOR LACK

OF SUBJECT MATTER JURISDICTION .......................................................................23
III. PLAINTIFFS FAIL TO STATE A CLAIM FOR VIOLATION OF THE NEW

YORK RIGHT OF PUBLICITY STATUTE ....................................................................23
A. The Nonresident Plaintiffs Cannot Recover Damages Under Section 51 .............24
B. Vogue’s Use of Plaintiffs’ Images Falls Within the “Newsworthy”
Exception to NYCLR § 50-51 ...............................................................................24
1. Fashion Reporting Falls Within the Newsworthy Exception to § 51 ....... 26
2. The Photographs Bore a “Real Relationship” to the Subject Matter
of the Article ............................................................................................. 27
3. The Editorial Feature Is Not Advertising in Disguise .............................. 27
(a) The Advertising Component Here Was Merely Incidental .......... 28
(b) Close Proximity to Advertising Does Not Transform an
Editorial Feature into an Advertising in Disguise......................... 30
CONCLUSION ..............................................................................................................................34
i
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Albert v. Apex Fitness, Inc.,

No. 97 CIV 1151(LAK), 1997 WL 323899 (S.D.N.Y. June 13, 1997)
(Kaplan, J.) ...............................................................................................................2, 20, 21, 22
Ann-Margaret v. High Soc’y Magazine, Inc.,

498 F. Supp. 401 (S.D.N.Y. 1980) ..........................................................................................27
Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937 (2009) ....................................................................11, 14, 18, 21
Bell Atl. Corp. v. Twombly,

550 U.S. 544, 127 S. Ct. 1955 (2007) ......................................................................................11
Bi–Rite Enters., Inc. v. Button Master,

555 F. Supp. 1188 (S.D.N.Y. 1983).........................................................................................24
Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide,
Inc., 369 F.3d 212 (2d Cir. 2004) ............................................................................................14
Brown v. Showtime Networks, Inc.,

394 F. Supp. 3d 418 (S.D.N.Y. 2019)..........................................................................13, 15, 16
Brzak v. United Nations,

597 F.3d 107 (2d Cir. 2010).....................................................................................................23
Burck v. Mars, Inc.,

571 F. Supp. 2d 446 (S.D.N.Y. 2008).............................................................................. passim
Cave v. E. Meadow Union Free Sch. Dist.,

514 F.3d 240 (2d Cr. 2008)......................................................................................................23
Chambers v. Time Warner, Inc.,

282 F.3d 147 (2d Cir. 2002).....................................................................................................11
Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Grp., Inc.,

886 F.2d 490 (2nd Cir. 1989)...................................................................................................13
Cummings v. Soul Train Holdings, LLC,

67 F. Supp. 3d 599 (S.D.N.Y. 2014)........................................................................................24
D’Andrea v. Rafla-Demetrious,
972 F. Supp. 154 (E.D.N.Y. 1997), aff’d, 146 F.3d 63 (2d Cir. 1998) ....................................29
ii
DeClemente v. Columbia Pictures Indus., Inc.,

860 F. Supp. 30 (E.D.N.Y. 1994) ............................................................................................17
DiFolco v. MSNBC Cable LLC,

622 F.3d 104 (2d Cir. 2010).....................................................................................................11
Dryer v. National Football League,

55 F. Supp. 3d 1181 (D. Minn. 2014), aff’d, 814 F.3d 938 (8th Cir. 2016) ............................19
E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc.,

547 F.3d 1095 (9th Cir. 2008) .................................................................................................15
Gary Friedrich Enters., LLC v. Marvel Enters., Inc.,

713 F. Supp. 2d 215 (S.D.N.Y. 2010)......................................................................................24
Gottlieb Dev. LLC v. Paramount Pictures Corp.,

590 F. Supp. 2d 625 (S.D.N.Y. 2008)......................................................................................20
Groden v. Random House, Inc.,

61 F.3d 1045 (2d Cir. 1995)...............................................................................................24, 25
Groucho Marx Prods. v. Day & Night Co.,

689 F.2d 317 (2d Cir. 1982).....................................................................................................24
Guthrie Healthcare Sys. v. Contextmedia, Inc.,

826 F.3d 27 (2d Cir. 2016).......................................................................................................21
Halebian v. Berv,
644 F.3d 122 (2d Cir. 2011).......................................................................................................5
Hirsch v. Arthur Andersen & Co.,

72 F.3d 1085 (2d Cir. 1995).....................................................................................................14
Hoffman v. Capital Cities/ABC, Inc.,

255 F.3d 1180 (9th Cir. 2001) ...........................................................................................15, 30
Hollander, v. Pressreader, Inc.,

No. 19-cv-2130 (AJN), 2020 WL 2836189 (S.D.N.Y. May 30, 2020) ...................................25
LaFaro v. N.Y. City Cardiothoracic Grp.,

570 F.3d 471 (2d Cir. 2009).....................................................................................................11
Lee v. Black Entm’t Television, LLC,

No. 19-CV-02751, 2020 WL 1140795 (S.D.N.Y. Mar. 6, 2020) (Kaplan, J.) ........................23
Lemerond v. Twentieth Century Fox Film Corp.,

No. 07 Civ. 4635(LAP), 2008 WL 918579 (S.D.N.Y. 2008) ..................................................25
iii
Lerman v. Flynt Distrib. Co.,

745 F.2d 123 (2d Cir. 1984)...............................................................................................25, 28
Lerman v. Flynt Distrib. Co.,

745 F.2d 123 (2d Cir. 1984).....................................................................................................23
LMNOPI v. XYZ Films, LLC,

449 F. Supp. 3d 86 (E.D.N.Y. 2020) .......................................................................................13
Mathews v. ABC Television, Inc.,

No. 88 CIV. 6031(SWK), 1989 WL 107640 (S.D.N.Y. Sept. 11, 1989) ................................24
May v. Sony Music Entm’t,

399 F. Supp. 3d 169 (S.D.N.Y. 2019)........................................................................................5
Myskina v. Condé Nast Publ’ns,

386 F. Supp. 2d 409 (S.D.N.Y. 2005)................................................................................26, 27
New Kids on the Block v. News Am. Publ’g. Inc.,

745 F. Supp. 1540 (C.D. Cal. 1990), aff’d, 971 F.2d 302 (9th Cir. 1992).........................13, 17
Nora Beverages, Inc. v. Perrier Grp. of Am., Inc.,

269 F.3d 114 (2d Cir. 2001).....................................................................................................22
Orient Exp. Trading Co. v. Federated Dep’t Stores, Inc.,

842 F.2d 650 (2d Cir. 1988).....................................................................................................23
Pelton v. Rexall Sundown, Inc.,

No. 99 CIV 4342 JSM, 2001 WL 327164 (S.D.N.Y. 2001)....................................................22
Pirone v. MacMillan, Inc.,

894 F.2d 579 (2d Cir. 1990).........................................................................................19, 20, 22
Polaroid Corp. v. Polarad Elecs. Corp.,

287 F.2d 492 (2d Cir. 1961)...............................................................................................22, 23
Psihoyos v. Nat’l Examiner,

No. 97-7624, 1998 WL 336655 (S.D.N.Y. June 22, 1998) .....................................................26
Renxiong Huang v. Minghui.org,

No. 15 Civ. 5582 (ER), 2019 WL 2525416 (S.D.N.Y. June 19, 2019) ...................................25
Roberts v. Bliss,
229 F. Supp.3d 240 (S.D.N.Y. 2017).................................................................................22, 23
Robinson v. Snapple Beverage Corp.,

No. 99 CIV. 344(LMM), 2000 WL 781079 (S.D.N.Y. June 19, 2000) ..................................28
iv
Rogers v. Grimaldi,
875 F.2d 994 (2d Cir. 1989)............................................................................................. passim
Scholastic Inc. v. Stouffer,

81 F. App’x 396 (2d Cir. 2003) ...............................................................................................21
Two Pesos, Inc. v. Taco Cabana, Inc.,

505 U.S. 763, 112 S. Ct. 2753 (1992) ......................................................................................20
United We Stand Am. Inc. v. United We Stand, Am. N.Y., Inc.,

128 F.3d 86 (2d Cir. 1997).......................................................................................................13
Yankee Publ’g Inc. v. News Am. Publ’g Inc.,

809 F. Supp. 267 (S.D.N.Y. 1992) ....................................................................................13, 15
State Cases
Abdelrazig v. Essence Commc’ns,

225 A.D.2d 498 (1st Dep’t 1996) ............................................................................................26
Arrington v. N.Y. Times Co.,

55 N.Y.2d 433 (1982) ..............................................................................................................25
Bement v. N.Y.P. Holdings, Inc.,

307 A.D.2d 86 (1st Dep’t 2003) ..............................................................................................25
Beverley v. Choices Women’s Med. Ctr.,

78 N.Y.2d 745 (1991) ..............................................................................................................28
Creel v. Crown Publishers, Inc.,

115 A.D.2d 414 (1st Dep’t 1985) ............................................................................................26
Cruz v. Latin News Impacto Newspaper,

216 A.D.2d 50 (1st Dep’t 1995) ........................................................................................27, 29
Dominguez v. Vibe Magazine,

21 Misc. 3d 1122(A) (Sup. Ct. N.Y. Cty. 2008) ......................................................................27
Finger v. Omni Publ’ns Int’l, Ltd.,

77 N.Y.2d 138 (1990) ..............................................................................................................25
Kasky v. Nike, Inc.,

27 Cal. 4th 939 (2002) .............................................................................................................33
Lahiri v. Daily Mirror,

162 Misc. 776 (Sup. Ct. N.Y. Cty. 1937) ................................................................................27
Lopez v. Triangle Commc’ns,

70 A.D.2d 359 (1st Dep’t 1979) ..................................................................................15, 30, 32
v
Messenger ex rel. Messenger v. Gruner + Jahr Printing & Publ’g,

94 N.Y.2d 436, 441 (2000) ......................................................................................................25
Morse v. Studin,
283 A.D.2d 622 (2d Dep’t 2001) .............................................................................................28
S.E. Bank, N.A. v. Lawrence,

66 N.Y.2d 910 (1985) ..............................................................................................................24
Selsman v. Univ. Photo Books, Inc.,

18 A.D.2d 151 (1st Dep’t 1963) ..............................................................................................28
Stephano v. News Grp. Publ’ns,

64 N.Y.2d 174 (1984) ...................................................................................................... passim
Stewart v. Rolling Stone LLC,

181 Cal. App. 4th 664 (2010) ............................................................................................32, 33
Federal Statutes
15 U.S.C. §§ 1125(a) ............................................................................................................. passim
15 U.S.C. § 1121(a) .......................................................................................................................23
State Statutes
Cal. Civ. Code § 3344 ....................................................................................................................32
NY Civ Rights L §§ 50-51 ...............................................................................................1, 3, 10, 24
Other Authorities
J. Thomas McCarthy & Roger E. Schechter, The Rights of Publicity and Privacy §
8:100 (2d ed. 2020) ..................................................................................................................28
J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 28.14

(5th ed. 2020) ...........................................................................................................................18
vi
Defendants Advance Publications, Inc. d/b/a Condé Nast, and Advance Magazine
Publishers, Inc. d/b/a Condé Nast (collectively, “Vogue”) respectfully submit this memorandum
of law in support of their motion to dismiss the Complaint with prejudice pursuant to Fed. R.
Civ. P. 12(b)(1) and (6).
PRELIMINARY STATEMENT
Vogue is an iconic fashion magazine that has been providing in-depth coverage of style
and trends since 1892. Each season, the Runway section of Vogue’s website publishes
comprehensive commentary and analysis discussing every major designer’s collection, along
with thousands of photographs illustrating each design presented. At issue in this case is
Vogue’s coverage of the Spring 2020 Ready-to-Wear collections. Plaintiffs – all of whom are
professional models – claim that Vogue violated the Lanham Act and New York’s right of
publicity statute by publishing photographs of them doing their jobs, i.e., modeling on the
runways at the featured fashion shows. Their central – and erroneous – premise is that Vogue’s
editorial feature was transmuted into commercial speech simply because it included near their
images a small red button with just three words: “Shop This Look.” If a reader clicked that
hyperlinked button, they were taken to the independent website of an advertiser, Moda Operandi
(“Moda”), though the button on Vogue’s site made no mention of Moda at all. From the Moda
site, a visitor could purchase the designer clothes pictured in Vogue. But editorial coverage in
newspapers, magazines and the like have long co-existed with advertising alongside articles. Put
simply, close proximity to sponsored content does not overcome the well-established First
Amendment protection afforded to news and commentary under both the Section 43(a) of the
Lanham Act, 15 U.S.C. § 1125(a), and Sections 50-51 of the New York Civil Rights Law.
Plaintiffs’ claims as against Vogue fail as a matter of law and should be dismissed with
prejudice.
First, Plaintiffs fail to state a false endorsement claim under Section 43(a) of the Lanham
Act. When a Lanham Act claim arises out of editorial speech – and even when “artistic and
commercial elements” are “inextricably intertwined” – courts in the Second Circuit apply a
stringent rule in order to balance the aims of the Lanham Act against the protections for
expressive works guaranteed by the First Amendment. Rogers v. Grimaldi, 875 F.2d 994, 998
(2d Cir. 1989). Under Rogers, use of a plaintiff’s name or image in an expressive work
(including news and commentary) is protected by the First Amendment unless it (1) “has no
artistic relevance to the underlying work whatsoever” or (2) “explicitly misleads as to the source
or the content of the work.” Id. at 999. Plaintiffs have not pleaded either element. As models at
the actual fashion shows featured in Vogue Runway’s editorial coverage, Plaintiffs’ images were
obviously relevant to that coverage. And Plaintiffs do not (and cannot) allege that Vogue made
any explicit statement indicating that Plaintiffs endorsed Moda or its services. Failing to meet
the Rogers standard requires dismissal of Plaintiffs’ Lanham Act claim.
Even under the less stringent test applicable to purely commercial works – which
Vogue’s editorial feature plainly is not – Plaintiffs’ Lanham Act claim would fail because
Plaintiffs have not alleged any false statement by Vogue, or any facts to support a likelihood of
confusion as to their sponsorship of Moda. As this Court has previously held, a false
endorsement claim arising from a commercial work must be dismissed at the pleading stage
where “[t]here is nothing about defendant’s use of [plaintiff’s] picture that implies that the
plaintiff personally endorsed its products.” Albert v. Apex Fitness, Inc., No. 97 CIV 1151(LAK),
1997 WL 323899, at *1 (S.D.N.Y. June 13, 1997) (Kaplan, J.). As in Albert, “[n]o reasonable
trier of fact could reach,” id., the conclusion that images of models walking the runways at
designer fashion shows – included to illustrate Vogue’s commentary on the new designs –
2
somehow reflects that each model endorses adjacent advertising. To the contrary, Plaintiffs are
professional models, paid to walk the runways at fashion shows, where the whole point is to be
photographed wearing the designers’ works, and it was understood by all that those photographs
would appear in editorial publications alongside advertisements. Plaintiffs do not (and cannot)
allege that Vogue did anything whatsoever to present them in a false light. The Section 43(a)
claim therefore fails as a matter of law.
Second, if the Court dismisses Plaintiffs’ Lanham Act claim, Plaintiffs’ state law right of
publicity claim must also be dismissed for lack of subject matter jurisdiction.
Third, in the event that the Court does reach Plaintiffs’ right of publicity claim, it too
should be dismissed as a matter of law. To begin, 26 of the Plaintiffs allege that they are not
even New York residents; their claims should be dismissed on that basis alone since only New
York residents are entitled to relief under New York’s right of publicity statute. As to the
remaining Plaintiffs, their claims under the statute fail because the Vogue Runway editorial
feature falls squarely within the long-recognized “newsworthiness” exception applicable to right
of publicity claims, which was specifically developed to protect the kind of First Amendment-
protected speech at issue here. See Stephano v. News Grp. Publ’ns, 64 N.Y.2d 174, 184 (1984).
Accordingly, New York courts have held that once a challenged publication is determined to be
in the public interest – as fashion reporting has repeatedly been found to be – there can be no
liability under Sections 50-51 unless the use of the plaintiff’s images has no relation to the
subject of the report, or it is an advertisement in disguise. Id. Here, for many of the same
reasons the Lanham Act claim fails, there can be no doubt that photographs of Plaintiffs
modeling designer works at fashion shows are directly relevant to news coverage about those
shows. And the mere proximity of paid advertisements to Plaintiffs’ images does not transform
3
an editorial feature into an “advertisement in disguise.” Again, the Plaintiffs willingly walked
the runways at fashion shows where the expectation was that they would be photographed and
that those images would be widely used to promote the clothes they were wearing. Accurate,
newsworthy coverage is protected by the First Amendment and not actionable under New York
law.
Vogue’s motion to dismiss should be granted with prejudice.
FACTUAL BACKGROUND
A. The Parties
Plaintiffs are all “professional models who are routinely hired by companies for their
modeling services to sell products.” Complaint (“Compl.”) ¶ 330.1 Seventeen of the Plaintiffs
allege that they are New York residents (the “New York Plaintiffs”).2 See id. ¶¶ 1-43. The
remaining 26 Plaintiffs reside outside New York (the “Non-Resident Plaintiffs”), including many
who reside outside the United States.3 Id. Each Plaintiff claims to be “well-known as a model
throughout the United States and in other countries throughout the world.” Id. ¶ 293.
Defendants Advance Publications, Inc. and Advance Magazine Publishers,
Inc.(collectively, “Condé Nast”) publish the world famous fashion magazine Vogue (“Vogue”),
and Vogue’s website, vogue.com. Id. ¶¶ 309-310. Both Advance Publications, Inc. and
Advance Magazine Publishers, Inc. are New York corporations, with their principal places of
business in New York.
1
Pursuant to the Court’s Individual Rules, the Complaint is filed with this motion as Exhibit A to the Declaration of
Elizabeth A. McNamara (“McNamara Decl.”).
2
The New York Plaintiffs are: Abdi; Abioro; Arrington; Cabe; Chistensen; Gonzalez; Hartzel; Knorr; Medina; A.C.
Montero; L. Montero; Padilla; Pavlova; Taylor; Van Erp; Walton; and Yai.
3
The Non-Resident Plaintiffs are: Arrebola; Ayerdi; Bolt; Bui; Champion; Clevelend; Delozier; Eirud; Forrest;
Grenville; Gunn; Halbert; Harris; He; Hill; Hoevelaken; Li; Marconi; Martinez; Miloqui; Oliveira; Robinson;
Sigurdardottir; Stoddart; Urushadze; and Xu.
4
Defendant Moda Operandi, Inc. (“Moda”) is “an online storefront for consumers from
various locations to purchase high-fashion designer items that are, inter alia, seen on the
runway.” Compl. ¶ 299. Moda is a Delaware corporation, with its principal place of business in
New York. Id. ¶ 44. Moda is one of Vogue’s many advertisers. Id. ¶ 489.
B. Vogue’s Spring 2020 Ready-to-Wear Editorial Feature
Since 1892, Vogue has been a leading editorial voice in reporting on style, fashion, and
culture. Id. ¶¶ 313-316. Vogue’s editorial team is led by Editor in Chief Anna Wintour, as well
as Deputy Editor Taylor Antrim, along with dozens of other editorial staff responsible for
overseeing and developing Vogue’s reporting. McNamara Decl. Ex. B (Vogue 2021 Masthead).
Vogue publishes in print and online. Vogue’s website, vogue.com, has 12.5 million
unique monthly visitors. Compl. ¶ 311. Vogue.com’s home page features a wide range of
editorial stories, ranging from politics to wellness.4 The site is divided into seven sections, each
with its own focus and content: Fashion, Beauty, Culture, Living, Runway, Shopping, and
Video. Id. The Runway section of vogue.com, which is the focus of Plaintiffs’ claims, reports
on the latest news concerning fashion designers: Vogue Runway’s top-10 most read stories of
2020 include articles about a designer’s “sew-it-yourself jacket,” “Jean Paul Gaultier’s Longtime
Muse,” and “The 17 Items That Defined 2020.”5 Since 1988, each season, Vogue Runway also
provides exhaustive coverage of nearly every work shown at every major designer show.6
4
See https://www.vogue.com.
5
Nicole Phelps, Vogue Runway’s Most-Read Stories of 2020, vogue.com (Dec. 18, 2020),
https://www.vogue.com/article/most-read-stories-2020 (last visited Jan. 10, 2021).
6
See https://www.vogue.com/fashion-shows (last visited Dec. 23, 2020). While Plaintiffs’ Complaint describes
select portions of the Editorial Feature, neither the allegations of the Complaint nor the exhibits provide the Court
information sufficient to appreciate the full context in which the Editorial Feature appears. Information that
provides required context and bears on the claims asserted in a complaint can be appropriately considered on a
motion to dismiss. See May v. Sony Music Entm’t, 399 F. Supp. 3d 169 (S.D.N.Y. 2019); Halebian v. Berv, 644
F.3d 122, 130 n.7 (2d Cir. 2011) (“[I]t is well established that on a motion to dismiss for failure to state a claim
5
In or around September 2019, Vogue published an online editorial feature about the
Spring 2020 Ready-to-Wear collections (the “Editorial Feature”). From the home page for the
Feature,7 visitors can select a designer whose line they wish to review in more detail by clicking
the name of the designer from a pull-down menu on the left of the page, or by clicking one of the
thumbnails. Id. From there, a visitor is then brought to a landing page offering commentary and
analysis about that designer’s Spring 2020 collection. See McNamara Decl. Ex. C
(representative designer landing pages). For example, the Alexander McQueen landing page
includes an article by Vogue reporter Sally Singer reviewing that designer’s collection.8 Id.
Many of the designer landing pages also feature video from the designer’s runway show, and
include a section labeled “Atmosphere” that shows wide shots of the models, as well as the
audience at each show, providing readers with an even more detailed sense of what the fashion
show was like.9 Particularly relevant to this action, for each collection included in the Editorial
Feature, there is a link to a “slide show,” which illustrates the editorial commentary by showing
each individual work presented at the show. Id. The images featured in the slide show depict
models, including the Plaintiffs, as they walked the runway for the featured designer show. This
slideshow element has been included in the Vogue Runway features for the last several years.
See McNamara Decl. Ex. D (representative examples of past season’s Runway coverage).
Like most magazines, in print and online, Vogue generates revenue by selling space to
pursuant to Rule 12(b)(6), the court may also rely upon documents attached to the complaint as exhibits[] and
documents incorporated by reference in the complaint.”) (citation and internal quotation marks omitted).
7
https://www.vogue.com/fashion-shows/spring-2020-Ready-to-Wear (last visited Dec. 23, 2020).
8
There are editorial articles analyzing each of the other collections included as part of Plaintiffs’ Complaint. See,
e.g., Proenza Schouler, https://www.vogue.com/fashion-shows/spring-2020-ready-to-wear/proenza-schouler;
Salvatore Ferragamo, https://www.vogue.com/fashion-shows/spring-2020-ready-to-wear/salvatore-ferragamo;
Versace, https://www.vogue.com/fashion-shows/spring-2020-ready-to-wear/versace.
9
See, e.g., https://www.vogue.com/fashion-shows/spring-2020-ready-to-wear/michael-kors-
collection/slideshow/atmosphere#1.
6
advertisers whose products are promoted side-by-side with Vogue’s editorial content. As to be
expected, advertisers place their advertising dollars where they anticipate they will find likely
consumers. Vogue advertisers cover a wide range, but many are related to the fashion world.
For example, located next to the images of Plaintiffs in the Editorial Feature are ads for various
fashion and designer products, including: Hourglass cosmetics, Compl. Ex. 6, Dkt. 1-2 at 43;
jewelry designs, id. Ex. 8, Dkt. 1-3 at 15; Levi’s “balloon jeans,” id. at 13; Burberry handbags,
id. Ex. 10, Dkt. 1-4 at 7; Hermès, id. Ex. 20, Dkt. 1-7 at 57 and Ex. 25, Dkt. 1-9 at 37; and
clothing retailer MyTheresa, id. Ex. 30, Dkt. 1-10 at 44. See Figure. 1. As is common in the
interactive internet space, advertising may include links to the product site, including (as can be
seen below) a link to “shop now.” Plaintiffs do not challenge their association with any of this
advertising in this action.
Figure 1: Illustrative Examples From the Exhibits to Plaintiffs’ Complaint
Compl. Ex. 5, Dkt. 1-2 at 43
7
Compl. Ex. 8, Dkt. 1-3 at 13 Compl. Ex. 1, Dkt. 1-1 at 32
Plaintiffs’ action against Vogue instead rests on the small red box in the lower corner of
some illustrative runway photos, with the words, “Shop This Look.” Compl. ¶ 345. See
Figure 1. The placement of the hyperlinked box varied depending on the platform used to view
the content. While the examples attached to the Complaint generally show the red box at the
bottom of the image, the “Shop This Look” box was displayed at the bottom of the screen when
viewed on an iPhone 7 using the Safari browser. See Figure 2.10
10
As alleged in the Complaint, the Editorial Feature also included a small number of pages with a second type of
even smaller hyperlinked text box that appeared in the lower-left corner of the screen: these boxes displayed a small
image of a shopping basket along with the words “Buy on Moda Operandi.” Compl. ¶ 347. The exhibits to the
Complaint show just a small handful of instances where this second link was used, and those exhibits crop out the
editorial articles just below the photos. See, e.g., Compl. Ex. 20, Dkt. 1-7 at 64; Compl. Ex. 36, Dkt. 1-11 at 70;
Compl. Ex. 40, Dkt. 1-13 at 52.
8
Figure 2: The Editorial Feature As It Appeared On An iPhone
If a reader elected to click the red box, she would be taken to a page on the Moda website
featuring a “trunk show,” where “the consumer can purchase the same style items” featured in
the runway photographs. Compl. ¶ 346. Prior to clicking on the link, the reader would have no
way to associate the “Shop This Look” button with Moda. The Moda website is owned and
controlled by Moda. The Moda website does not include any reference to Vogue; nor do the
Plaintiffs allege that Vogue is in any way referenced or featured on the Moda website.
9
C. The Complaint
Plaintiffs commenced this action on September 4, 2020, asserting two causes of action
against both Vogue and Moda: (1) Violation of New York’s Civil Rights Law §§ 50-51
(“Section 51”); and (2) Violation of § 43(a) of the Lanham Act (15 U.S.C. § 1125). Plaintiffs
allege that they are all “professional models who are routinely hired by companies for their
modeling services to sell products” and, more specifically, Plaintiffs acknowledge that they
“consented to walk in the runways for the respective runway shows” reported on in Vogue’s
Editorial Feature. Compl. ¶¶ 330, 635. Plaintiffs do not claim any copyright interest in the
photos from the runway shows used in Vogue’s Editorial Feature. Nor do Plaintiffs allege that
the photos used in the Vogue Editorial Feature are the same photos used on Moda’s website.11
The Complaint’s allegations specific to Vogue are limited. The Complaint alleges
(without factual detail) that Vogue violated Section 43(a) of the Lanham Act because its use of
Plaintiffs’ images were “aimed at Moda’s consumers and potential consumers in connection with
MODA’s products and services,” Compl. ¶ 627, that Plaintiffs “are made to appear as if they
endorse MODA and its products,” id. ¶ 633, that Defendants “misleadingly represent[] that
PLAINTIFF(s) and MODA have a brand partnership and/or business relationship,” id. ¶ 639, and
that “the general public is likely to be, and has been, deceived and/or confused into thinking that
products offered for sale by MODA . . . were sponsored by, or associated with,” Plaintiffs, id.
¶¶ 643, 649, 650. Next, Plaintiffs allege Vogue’s Editorial Feature violated New York Civil
Rights Law § 51, because Vogue used their images “for trade or advertising purposes,” without
11
When one compares the actual photos used in Vogue’s Editorial Feature with the photos that appear on Moda’s
website, it becomes evident that they are not the same photos. Since the photos were all taken at the same runway
shows, they are necessarily quite similar but they capture different moments at the event. Compare, e.g., Compl.
Ex. 1 at 26, with Ex. 1 at 35 (Plaintiff Champion/Tory Burch); Compl. Ex. 1 at 30 with Ex. 1 at 3 (Plaintiff
Champion/Zimmerman); Compl. Ex. 3 at 47 with Ex. 3 at 54 (Plaintiff Montero/Michael Kors). Plaintiffs do not
allege, nor could they, that Vogue licensed any photos it displayed in the Editorial Feature to Moda.
10
authorization. Id. ¶ 617. For both claims, Plaintiffs seek damages, attorney fees and a
permanent injunction. Id. ¶¶ 619, 652.
ARGUMENT
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S. Ct. 1955, 1974 (2007)) (internal quotation marks omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129
S. Ct. at 1949. In applying this standard, the Court need not credit conclusory legal allegations
or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id., 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 557, 127 S. Ct. at 1966); see also LaFaro v. N.Y. City
Cardiothoracic Grp., 570 F.3d 471, 475-76 (2d Cir. 2009) (“We are not bound to accept as true
legal conclusions couched as factual allegations”). Where the well-pleaded facts do not
“plausibly give rise to an entitlement to relief,” dismissal is appropriate. Iqbal, 556 U.S. at 679,
129 S. Ct. at 1950. In considering a 12(b)(6) motion to dismiss, “a district court may consider the
facts alleged in the complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.” DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111
(2d Cir. 2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
“[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950.
Here, the Complaint cannot withstand dismissal because it contains nothing more than
conclusory allegations that do not plausibly give rise to a claim for violation of either the
11
Lanham Act or Section 51.
I. THE COMPLAINT FAILS TO STATE A CLAIM FOR FALSE ENDORSEMENT

UNDER THE LANHAM ACT
The Complaint fails to plead a claim for false endorsement under Section 43(a) of the
Lanham Act, because it cannot satisfy the demanding two-part test applied to claims arising out of
artistic or editorial content first articulated by the Second Circuit in Rogers. And even if the
Rogers test did not apply, the Complaint fails to establish that Vogue made any false or
misleading statements of fact concerning the Plaintiffs, or that its Runway Editorial Feature is
likely to cause consumer confusion.
“The elements of a false endorsement claim are that the defendant, (1) in commerce,
(2) made a false or misleading representation of fact (3) in connection with goods or services
(4) that is likely to cause consumer confusion as to the origin, sponsorship, or approval of the
goods or services.” Burck v. Mars, Inc., 571 F. Supp. 2d 446, 455 (S.D.N.Y. 2008). Plaintiffs’
strained and overbroad attempt to apply the Lanham Act to Vogue’s editorial commentary on the
latest fashion violates the First Amendment. As the Second Circuit instructs: When a Lanham
Act claim arises out of editorial speech – and even when “artistic and commercial elements” are
“inextricably intertwined” – a more stringent rule is applied in order to balance the aims of the
Lanham Act against the protections for expressive works guaranteed by the First Amendment.
Rogers, 875 F.2d at 998 (“Because overextension of Lanham Act restrictions . . . might intrude
on First Amendment values, we must construe the Act narrowly to avoid such a conflict.”).
Under Rogers, the use of a name or likeness in an expressive work is constitutionally
protected unless it (1) “has no artistic relevance to the underlying work whatsoever” or (2)
“explicitly misleads as to the source or the content of the work.” 875 F.2d at 999. Although the
court in Rogers applied this test in the context of a movie title, the Second Circuit has
12
subsequently made clear that it applies generally to Lanham Act claims arising out of expressive
works, Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Grp., Inc., 886 F.2d 490, 495 (2nd
Cir. 1989), and to “commentary, . . . news reporting or criticism” in particular. United We Stand
Am. Inc. v. United We Stand, Am. N.Y., Inc., 128 F.3d 86, 93 (2d Cir. 1997) (citing Yankee
Publ’g Inc. v. News Am. Publ’g Inc., 809 F. Supp. 267, 276 (S.D.N.Y. 1992)). See also New Kids
on the Block v. News Am. Publ’g. Inc., 745 F. Supp. 1540, 1544 (C.D. Cal. 1990) (“Although
Rogers concerned First Amendment values in the context of artistic expression, the First
Amendment plays the same central role regarding news gathering and dissemination.”), aff’d,
971 F.2d 302 (9th Cir. 1992).
The Rogers is test is routinely applied to dismiss false endorsement claims on a 12(b)(6)
motion. See, e.g., LMNOPI v. XYZ Films, LLC, 449 F. Supp. 3d 86, 94-95 (E.D.N.Y. 2020)
(dismissing false endorsement claim as a matter of law under Rogers); Brown v. Showtime
Networks, Inc., 394 F. Supp. 3d 418, 442 (S.D.N.Y. 2019) (same); Burck, 571 F. Supp. 2d at
457 (same); Louis Vuitton Malletier S.A. v. Warner Bros. Entm’t Inc., 868 F. Supp. 2d 172, 183-
84 (S.D.N.Y. 2012) (applying Rogers to dismiss trademark infringement claim).
A. The Rogers Test Applies to Vogue’s Editorial Feature
There can be little dispute that the Vogue Runway Editorial Feature, which reports on
designer styles presented for the Spring 2020 season, is “criticism, news reporting, and
commentary,” not mere commercial speech. The Editorial Feature accurately depicts images of
Plaintiffs as they appeared at the runway shows being reported on and provides commentary on
the fashion designs being illustrated. As a result, the Rogers test applies. Yankee Publ’g, 809 F.
Supp. at 276 (holding that the Rogers test applies to New York magazine’s satiric commentary on
the Farmer’s Almanac). This Court is not bound to accept Plaintiffs’ conclusory assertion that
Vogue’s uses of their images “are not editorial in nature, but rather are commercial . . . and for
13
advertising and promotional purposes,” Compl. ¶ 349, when, as here, Plaintiffs’ allegations are
squarely contradicted by the exhibits to the Complaint and other materials incorporated by
reference, like the Vogue.com website itself. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Blue
Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212,
222 (2d Cir. 2004) (discrediting allegation “belied” by letters attached to the complaint); Hirsch
v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995) (“General, conclusory allegations
need not be credited ... when they are belied by more specific allegations of the complaint”).
While Vogue’s website includes paid advertising – like virtually all magazine websites –
Vogue is indisputably an editorial publication, with a page-long masthead of editors, scores of
journalists who report and write its news articles, and photographers whose work illustrates the
text. The Vogue Runway Editorial Feature is but one editorial component to the issue: it is
comprehensive in scope, commenting on dozens of designer collections with in-depth articles
and commentary (which the Complaint ignores completely), illustrated by photographs,
including photographs of Plaintiffs modeling the subject designer works at the runway shows.
The overriding purpose of the Feature is editorial – presentation and commentary concerning
designer collections – and not commercial. Indeed, Vogue has presented comprehensive runway
coverage for years and continues to do so – a practice that predates and postdates the use of the
“Shop This Look” feature. See, e.g., McNamara Decl. Ex. D.
Any commercial aspect of the Editorial Feature is relatively incidental. Plaintiffs do not
argue – nor could they – that the Runway Editorial Feature is transformed into commercial
speech as a result of the standard magazine practice of having advertising reside right next to
Plaintiffs’ images in the Feature, even though the ads often contain links to the advertiser’s
website. Instead, Plaintiffs’ claim primarily rests on the relatively small hyperlinked text boxes
14
that say “Shop This Look,” which do not even contain Moda’s name or any other advertiser
indicia. As such, the challenged component to the site is no different in kind than the standard
advertising that populates online magazine, news (and other) websites. Since the core nature of
the Feature is “criticism, news reporting, and commentary,” Yankee Publ’g, 809 F. Supp. at 276,
Plaintiffs’ claim must be dismissed because they fail to plausibly allege that their images were
“irrelevant” to the Feature, or that Vogue made an “explicit” false statement as to their
endorsement of Moda’s services or products.12
B. Use of Plaintiffs’ Images Is Artistically Relevant to the Editorial Feature
“The threshold for ‘artistic relevance’ is purposely low and will be satisfied unless the
use ‘has no artistic relevance to the underlying work whatsoever.’” Brown, 394 F. Supp. 3d at
442 (quoting Louis Vuitton, 868 F. Supp. 2d at 178). “[T]he level of relevance merely must be
above zero.” Id. (quoting E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095,
1100 (9th Cir. 2008)). For example, in Rogers, the Second Circuit held that the artistic relevance
prong was satisfied where Ginger Rogers’ name was “not arbitrarily chosen just to exploit the
publicity value of [the plaintiffs’ name] but instead ha[d] genuine relevance” to the underlying
work. 875 F.2d at 1001. Here, it is obvious beyond dispute that photographs of Plaintiffs
modeling designer clothing at runway shows is directly relevant to an editorial feature about
those very same runway shows. Plaintiffs do not even allege otherwise. Every image of
Plaintiffs attached in the exhibits to their Complaint show Plaintiffs modeling the designer works
that are the subject of the editorial feature. In fact, Plaintiffs concede that they “consented to
12
Cf. Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001) (use of Dustin Hoffman’s image
“warranted full protection under the First Amendment” from Lanham Act liability when used in magazine’s editorial
feature, despite “commercial aspects of article”); Stephano, 64 N.Y.2d at 184 (editorial feature not commercial
speech, despite providing information about where clothing can be purchased and the price); Lopez v. Triangle
Commc’ns, 70 A.D.2d 359, 361 (1st Dep’t 1979) (editorial feature in Seventeen not transformed into commercial
speech because the magazine also contained advertising).
15
walk in the runways for the respective shows” depicted. Compl. ¶ 635. There is no plausible
basis for alleging that the use of Plaintiffs’ photographs had zero relevance to the Editorial
Feature.
C. Vogue Did Not Explicitly Mislead as to the Source of the Content
Since the images used are relevant to the runway Feature, Vogue’s use of Plaintiffs’
images “is unprotected only if it ‘explicitly misleads as to the source or content of the work.’”
Brown, 394 F. Supp. 3d at 443 (quoting Rogers, 875 F.2d at 999). Rogers is instructive. There,
Ginger Rogers argued that calling the movie at issue “Ginger and Fred” necessarily implied that
she endorsed, sponsored, or approved the film. 875 F.2d at 1001. But, absent an “explicit
indication that Rogers endorsed the film or had a role in producing it,” her Lanham Act claim
failed. Id. (holding that the “risk of misunderstanding, not engendered by any overt claim . . . is
so outweighed by the interests in artistic expression as to preclude application of the Lanham
Act”).
Here, Plaintiffs do not allege any explicit indication by Vogue that Plaintiffs endorsed
goods sold by Moda. Indeed, the “Shop This Look” hyperlinked boxes that are the primary
focus of Plaintiffs’ Complaint do not even mention Moda, and Plaintiffs do not point to a single
statement anywhere in Vogue that makes any “overt claim” at all linking Plaintiffs to Moda.
Vogue’s only reference to Moda, as alleged in the Complaint, are the very small “Buy on Moda
Operandi” text boxes that appear on a few of the illustrations, but those buttons also make no
overt statement about sponsorship or endorsement. Since Plaintiffs do not (and cannot) allege
any explicit statement by Vogue indicating that the Plaintiffs endorsed Moda or its goods and
services, their false endorsement claim must be dismissed. See, e.g., Brown, 394 F. Supp. 3d at
443 (dismissing false endorsement claim where plaintiff offered nothing more than “conclusory
allegations” to suggest that the defendant explicitly misled consumers as to the source of their
16
work); DeClemente v. Columbia Pictures Indus., Inc., 860 F. Supp. 30, 51-52 (E.D.N.Y. 1994)
(rejecting Lanham claim against film title, “The Karate Kid” since it “does not explicitly state the
author or source allegedly associated with it”); New Kids On the Block, 745 F. Supp. at 1545
(rejecting “theory of implicit endorsement” and holding that “the Lanham Act does not apply
unless the defendants falsely and explicitly represented that New Kids sponsored or endorsed the
use of the 900 number” at issue). Plaintiffs’ Lanham Act claim cannot withstand the
requirements of Rogers and must therefore be dismissed.
D. Plaintiffs Fail to Allege Any False or Misleading Statement of Fact
Even if the Vogue Runway Editorial Feature were not an expressive work subject to the
Rogers test – and it plainly is – Plaintiffs’ Section 43(a) claim still fails because they have not
plausibly alleged that Vogue made any false or misleading statement of fact, or caused any
likelihood of consumer confusion. Burck, 571 F. Supp. 2d at 455. Notably, the Complaint offers
little explanation of how Vogue allegedly violated the Lanham Act beyond conclusory
recitations of the legal standard. For example, Plaintiffs allege that Vogue’s use of their images
was “aimed at MODA’s consumers in connection with MODA products,” Compl. ¶ 627, but the
Complaint does not explain how. The same is true with respect to Plaintiffs’ allegation that “as a
result of defendant(s)’ unauthorized uses of PLAINTIFF(S)’ image(s), likeness(es), persona(s),
and/or name(s), PLAINTIFF(S) are made to appear as if they endorse MODA and its products.”
Id. ¶ 633. These allegations are completely lacking in specificity concerning Vogue and, as a
result, Plaintiffs allege no facts that could plausibly give rise to a false endorsement claim under
the Lanham Act.
1. Plaintiffs Do Not Allege That Vogue Made Any False Statements
“[F]alsity is the sine qua non of false advertising.” J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition § 28.14 (5th ed. 2020). Yet, Plaintiffs fail to plausibly
17
allege any statement made by Vogue at all. Rather, Plaintiffs merely state without any factual
support that Vogue and Moda “created a false impression of endorsement by PLAINTIFF(s) for
MODA’s consumer goods and services.” Compl. ¶ 640. This conclusory legal assertion is
insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949;
McCarthy on Trademarks § 28:15 (“An adequate pleading of false endorsement requires an
allegation of facts, not merely conclusory statement that a false endorsement occurred.”).
Fashion journalism (like all journalism) frequently includes images of people alongside
advertisements for products. No one could reasonably suggest that every image of a person in
the editorial section of a newspaper, magazine or television report is a statement about that
person’s endorsement of all products advertised alongside the report. By printing images of
models in its Runway Feature, Vogue is not implying that the models endorse Moda any more
than it is implying their endorsement of other companies or products advertised alongside
Plaintiffs’ images in the exhibits to their Complaint – e.g., Hourglass cosmetics, Compl. Ex. 6,
Dkt. 1-2 at 43; jewelry designs, id. Ex. 8, Dkt. 1-3 at 15; Levi’s “balloon jeans,” id. at 13;
Burberry handbags, id. Ex. 10, Dkt. 1-4 at 7; or Hermès, id. Ex. 20, Dkt. 1-7 at 57 and Ex. 25,
Dkt. 1-9 at 37. Advertising has long resided directly alongside editorial features (often with a
similar content nexus), and editorial copy itself regularly identifies how and where readers can
buy the looks, with links to websites. None of this is remotely actionable.
Plaintiffs do not allege that Vogue made any misrepresentations concerning the models’
association with the designers’ clothes. Nor could they. As they readily acknowledge, each of
the models did in fact appear in the runway show, modeling the designers’ latest fashions, and
their occupation dictates that they are “routinely hired by companies for their modeling services
to sell products.” Compl. ¶ 330. The incidental commercial aspects of their appearances in the
18
shows, as well as in the pages of Vogue are a known and obvious by-product of what they do.
Clearly, runway shows have many purposes, but one is to market the clothes being featured and
each model is critical to that marketing function. None of the Plaintiffs could plausibly argue
that there is a false association between them and the designers’ fashions they were modeling –
they indisputably were hired to display those fashions.
Consider, Dryer v. National Football League, 55 F. Supp. 3d 1181 (D. Minn. 2014),
aff’d, 814 F.3d 938 (8th Cir. 2016). There, the court dismissed a false endorsement claim
asserted by former football players who sued the NFL for airing documentary footage of their
games. Id. at 1202-03. The court found that this could not possibly constitute a false or
misleading statement:
The productions show Plaintiffs playing football. They do not graft Plaintiffs’
likenesses onto hockey players and show Plaintiffs playing hockey, or some other
sport, or performing some other activity unrelated to football. . . . This use of game
footage as game footage cannot, as a matter of law, cause confusion or mistake or
deceive anyone as to Plaintiffs’ affiliation with the NFL.
Id. Similarly, Vogue made no false or misleading statement by showing Plaintiffs engaged in
their profession: modeling designer clothing on a runway.
Consider also, Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990). In Pirone, the
Second Circuit held that photographs of Babe Ruth printed in a calendar did not falsely imply
sponsorship by Ruth (or his heirs, who had set up a company to license his mark):
While these pictures of Ruth are in a sense symbols, they in no way indicate origin
or represent sponsorship. Photographs of baseball, its players and assorted
memorabilia, are the subject matter of the calendar. The pictures of Ruth no more
indicate origin than does the back cover’s picture of Jackie Robinson stealing home
plate. Both covers are merely descriptive of the calendar’s subject matter. In
neither case would any consumer reasonably believe that Ruth or Robinson
sponsored the calendar.
19
Id. at 584. Tellingly, Plaintiffs do not allege the use of their images in Vogue implied
sponsorship of Vogue. Instead, they argue – that via nothing more than a “Shop This Look” link
– their sponsorship of Moda was implied. But the Vogue Runway Editorial Feature does not in
any way “indicate origin or represent sponsorship” of goods sold by Moda, an advertiser. Id.
Like the photographs of Babe Ruth at issue in Pirone, Plaintiffs’ images were used to illustrate
the subject matter of the Editorial Feature: the Spring 2020 Ready-to-Wear collections.
Plaintiffs do not, and cannot, allege any false or misleading statement made by Vogue in
connection with the Vogue Runway Feature.
2. Plaintiffs Have Not Alleged Any Likelihood of Consumer Confusion
Plaintiffs’ false endorsement claim also fails because reasonable readers of Vogue could
not possibly believe that the runway models pictured on its pages personally sponsor or endorse
any of the products of advertisers who advertise on Vogue’s website. See Albert, 1997 WL
323899, at *1 (“Essential to such a claim [] is a likelihood that the relevant audience will be
misled into believing that the plaintiff endorsed the defendant’s product or service”) Where such
facially implausible claims are asserted, pre-answer dismissal is appropriate.13
The “likelihood of confusion” inquiry is the threshold test for all trademark infringement
claims. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S. Ct. 2753, 2758 (1992).
See also Pirone, 894 F.2d at 584 (the “critical issue under the Lanham Act” is “whether there is
any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be
misled, or indeed simply confused, as to the source of the goods in question”) (citation and
13
If “simply looking at the work itself, and the context in which it appears, demonstrates how implausible it is that a
viewer will be confused into believing that the plaintiff endorsed the defendant’s work,” a § 43(a) claim should be
dismissed on a 12(b)(6) motion. Louis Vuitton, 868 F. Supp. 2d at 183; see also Albert, 1997 WL 323899, at *1
(dismissing false endorsement claim where no reasonable consumer could be confused); Gottlieb Dev. LLC v.
Paramount Pictures Corp., 590 F. Supp. 2d 625, 635 (S.D.N.Y. 2008) (dismissing § 43(a) claim because confusion
was “simply not plausible”).
20
internal quotation marks omitted). Moreover, “satisfaction of the likelihood-of-confusion
standard requires a probability of confusion, not a mere possibility.” Guthrie Healthcare Sys. v.
Contextmedia, Inc., 826 F.3d 27, 37 (2d Cir. 2016) (emphasis added) (citation and internal
quotation marks omitted). Accordingly, if “no reasonable juror could find a likelihood of
confusion,” then dismissal of a claim under the Lanham Act is proper as a matter of law.
Scholastic Inc. v. Stouffer, 81 F. App’x 396, 397 (2d Cir. 2003); Albert, 1997 WL 323899, at *1.
That is what this Court did in Albert when it held that no reasonable trier of fact could find that
the defendant’s use of the plaintiff’s picture “implies that the plaintiff personally endorsed its
products.” 1997 WL 323899, at *1.
Here, Plaintiffs do not (and cannot) even allege that reasonable consumers were likely
confused into thinking that Plaintiffs sponsored or endorsed Moda products. In support of their
claim, Plaintiffs offer nothing more than a bare, conclusory assertion that by publishing
photographs of Plaintiffs walking the runways, Vogue “deceived and/or confused” the “general
public” into thinking that Plaintiffs sponsored or approved of Moda and the goods sold on
Moda’s site. Compl. ¶¶ 643-647. This lacks facial plausibility and is insufficient to save
Plaintiffs’ claim. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1494.
Plaintiffs’ far-fetched contention of confusion here is even less plausible than the one
rejected by this Court in Albert, 1997 WL 323899, at *1. In Albert, a fitness company used a
photograph of the plaintiff in its advertising materials without the plaintiffs’ consent. Id. But as
the Court found, that alone was insufficient to infer any “likelihood that the relevant audience
will be misled into believing that the plaintiff endorsed the defendant’s product or service.” Id.
As in Albert, confusion is implausible here because it cannot be seriously asserted that “an
appreciable number of ordinarily prudent” Vogue readers would believe that every model
21
pictured in an article endorses every product advertised. Pirone, 894 F.2d at 584. See also
Pelton v. Rexall Sundown, Inc., No. 99 CIV 4342 JSM, 2001 WL 327164, at *4 (S.D.N.Y. 2001)
(rejecting false endorsement claim arising from image of the plaintiff on the label of a dietary
supplement because “[a]n ordinary consumer would view Plaintiff’s image in a swimsuit on the
label not as an indication of sponsorship, but as a reminder of the benefits of taking CitraLean or
Ultra CitraLean”).
The fact that each Plaintiff was one of many models shown in the Vogue Runway
Feature, Compl. Exs. 1-43, is yet another indicator that there was no likelihood of confusion.
For example, in Pirone, the court found that “photographs of one ballplayer among the many
featured in the calendar” did not give rise to a likelihood of confusion as to sponsorship, because
“an ordinarily prudent purchaser would have no difficulty discerning that these photos are
merely the subject matter of the calendar and do not in any way indicate sponsorship.” 894 F.2d
at 585. As in Pirone, “an ordinarily prudent” reader, id., reading the Editorial Feature in context
would understand that the Plaintiffs were pictured to illustrate a particular designer’s collection
and not because they endorsed products advertised in close proximity to their images (e.g.,
Levi’s “balloon jeans,” Compl. Ex. 8, Dkt. 1-3 at 13, Land O’Lakes butter, id. Ex. 32, Dkt. 1-10
at 58; or Swanson chicken broth, id. at 57). Plaintiffs simply cannot plead likelihood of
consumer confusion, a threshold requirement for a Lanham Act claim.14
14
While courts in the Second Circuit frequently analyze likelihood of confusion by applying the non-exclusive
eight-factor test set forth in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961), “a court
should focus on the ultimate question of whether consumers are likely to be confused.” Nora Beverages, Inc. v.
Perrier Grp. of Am., Inc., 269 F.3d 114, 119 (2d Cir. 2001) (citation omitted). Therefore, on a 12(b)(6) motion,
once the court has determined “that it is implausible that a viewer would be confused” as to whether a plaintiff
endorsed the goods at issue, the court “need not ‘slavishly recite the litany of all eight Polaroid factors.’” Roberts v.
Bliss, 229 F. Supp.3d 240, 253 (S.D.N.Y. 2017) (quoting Orient Exp. Trading Co. v. Federated Dep’t Stores, Inc.,
842 F.2d 650, 654 (2d Cir. 1988). See also id. at 253 n.4) (observing that district courts in this circuit differ as to
whether the Polaroid factors are even applicable on a 12(b)(6) motion).
22
Plaintiffs’ Lanham Act claim should be dismissed as a matter of law.
II. PLAINTIFFS’ STATE LAW CLAIM SHOULD BE DISMISSED FOR LACK OF

SUBJECT MATTER JURISDICTION
Since Plaintiffs’ Lanham Act claim fails as a matter of law, the Court should also dismiss
Plaintiffs’ state law claim for lack of subject matter jurisdiction. The only basis for subject
matter jurisdiction alleged in the Complaint is Section 1121(a) of the Lanham Act. Compl. ¶ 47.
That statute confers jurisdiction only as to “actions arising under this chapter,” i.e., the Lanham
Act. 15 U.S.C. § 1121(a). If Plaintiffs’ federal law claim fails, the Court should decline to
exercise jurisdiction over the state law claim. See Brzak v. United Nations, 597 F.3d 107, 113-14
(2d Cir. 2010) (“We have said that if a plaintiff’s federal claims are dismissed before trial, ‘the
state claims should be dismissed as well’”) (quoting Cave v. E. Meadow Union Free Sch. Dist.,
514 F.3d 240, 250 (2d Cr. 2008)). See also Lee v. Black Entm’t Television, LLC, No. 19-CV-
02751, 2020 WL 1140795, at *2 (S.D.N.Y. Mar. 6, 2020) (Kaplan, J.) (dismissing copyright
infringement claim and declining to exercise supplemental jurisdiction over remaining state law
claim).
III. PLAINTIFFS FAIL TO STATE A CLAIM FOR VIOLATION OF THE NEW

YORK RIGHT OF PUBLICITY STATUTE
In the event that the Court denies Vogue’s motion to dismiss Plaintiffs’ claim under the
Lanham Act, the Court should still dismiss as a matter of law Plaintiffs’ Section 51 claim. “To
make out a claim under Section 51, a plaintiff must establish (1) that the defendant used
plaintiff’s name, portrait or picture within the state, (2) for purposes of advertising or trade, and
(3) without first obtaining plaintiff’s written consent.” Lerman v. Flynt Distrib. Co., 745 F.2d
23
123, 129 (2d Cir. 1984) (internal quotation marks omitted).15 The Complaint fails to state a
Section 51 claim for several reasons. First, only New York residents can assert a claim under the
statute, foreclosing the claims by the Non-Resident Plaintiffs. Second, Plaintiffs’ claim is
squarely precluded by the well-established “newsworthiness” exception to liability under
Section 51.
A. The Nonresident Plaintiffs Cannot Recover Damages Under Section 51
“The New York Court of Appeals has clearly stated that ‘right of publicity’ claims are
governed by the substantive law of the plaintiff’s domicile . . . .” Rogers, 875 F.2d at 1002
(citing S.E. Bank, N.A. v. Lawrence, 66 N.Y.2d 910, 912 (1985)); see also Groucho Marx Prods.
v. Day & Night Co., 689 F.2d 317, 319 (2d Cir. 1982) (law of plaintiff’s domicile controls
whether right of publicity has been violated). Accordingly, federal courts routinely dismiss
claims under Section § 51 asserted by plaintiffs domiciled outside New York.16 The 27 Non-
Resident Plaintiffs cannot maintain causes of action under New York law, and their claims
should therefore be dismissed.
B. Vogue’s Use of Plaintiffs’ Images Falls Within the “Newsworthy” Exception

to NYCLR § 50-51
Plaintiffs’ claim under Section 51 also fails because Vogue’s use of Plaintiffs’ images fits
squarely within the well-established newsworthiness exception. New York’s right of publicity
15
“There is no common law right to privacy or publicity in New York, and thus Sections 50 and 51 provide the only
remedy for such claims.” Burck, 571 F. Supp. 2d at 450 (citing Groden v. Random House, Inc., 61 F.3d 1045, 1049
(2d Cir. 1995).
16
See, e.g., Cummings v. Soul Train Holdings, LLC, 67 F. Supp. 3d 599 (S.D.N.Y. 2014) (dismissing right of publicity
claim under New York law because Plaintiff was domiciled in Illinois); Gary Friedrich Enters., LLC v. Marvel Enters.,
Inc., 713 F. Supp. 2d 215, 229-30 (S.D.N.Y. 2010) (dismissing right to publicity claim under New York law where
plaintiff was domiciled outside of New York); Mathews v. ABC Television, Inc., No. 88 CIV. 6031(SWK), 1989 WL
107640, at *3 (S.D.N.Y. Sept. 11, 1989) (plaintiff residing in Kenya cannot assert right of publicity claim under New
York law); Bi–Rite Enters., Inc. v. Button Master, 555 F. Supp. 1188, 1197 (S.D.N.Y. 1983) (California law applied
to right of publicity action asserted by recording artists who were residents of California).
24
statute is “limited in [its] reach because of the First Amendment,” Burck, 571 F. Supp. 2d at 451,
and does not apply to “reports of newsworthy events or matters of public interest,” Messenger ex
rel. Messenger v. Gruner + Jahr Printing & Publ’g, 94 N.Y.2d 436, 441 (2000).17 Accordingly,
“a newsworthy article is not deemed produced for the purposes of advertising or trade.” Id. at
441. This is consistent with the purpose of Section 51, which was enacted “to protect privacy
without preventing publication of matters of public interest.” Groden, 61 F.3d at 1049.
The newsworthiness exception to New York’s right of publicity statute is “liberally
applied.” Hollander, v. Pressreader, Inc., No. 19-cv-2130 (AJN), 2020 WL 2836189, at *5
(S.D.N.Y. May 30, 2020) (emphasis added) (quoting Finger v. Omni Publ’ns Int’l, Ltd., 77
N.Y.2d 138, 143 (1990)); accord Stephano, 64 N.Y.2d at 184; Arrington v. N.Y. Times Co., 55
N.Y.2d 433, 440 (1982). Determining whether a challenged publication is newsworthy or a
matter of public interest is a question of law, and, as a result, courts routinely grant dismissal
motions on this basis.18
“[O]nce it is determined . . . that the published article is newsworthy, the only query at
that point becomes whether the article is an advertisement in disguise or whether its use of
plaintiff’s name and/or image bears any real relationship to the article.” Bement, 307 A.D.2d at
90-91 (1st Dep’t 2003). Accord Messenger, 94 N.Y.2d at 442. See also Finger, 77 N.Y.2d at
143 (“[J]judicial intervention should occur only in those instances where there is no real
17
See also Bement v. N.Y.P. Holdings, Inc., 307 A.D.2d 86, 89-90 (1st Dep’t 2003) (“Th[e] statutory right to privacy
[is] generally . . . inapplicable where the use occurs in the context of a report of newsworthy events or matters of
public interest.”); Lerman, 745 F.2d at 131 (“The trade purposes prong of the statute may not be used to prevent
comment on matters in which the public has a right to be informed.”).
18
See Lemerond v. Twentieth Century Fox Film Corp., No. 07 Civ. 4635(LAP), 2008 WL 918579 (S.D.N.Y. 2008)
(dismissing Section 51 claim and finding that the plaintiff’s appearance in the mocumentary film “Borat” was
newsworthy as a question of law); Hollander, 2020 WL 2836189, at *5) (dismissing Section 51 claim on grounds that
challenged use was newsworthy); Renxiong Huang v. Minghui.org, No. 15 Civ. 5582 (ER), 2019 WL 2525416, at *5
(S.D.N.Y. June 19, 2019) (same).
25
relationship between a photograph and an article, or where the [use] is an ‘advertisement in
disguise”) (internal citation and quotation marks omitted). Plaintiffs’ only argument to avoid
dismissal under the newsworthiness exception is to argue that the Editorial Feature was really an
advertisement in disguise, but that limitation is narrowly construed and does not apply to
editorial features in consumer magazines. Plaintiffs’ Section 51 claim fails as a matter of law.
1. Fashion Reporting Falls Within the Newsworthy Exception to § 51
When considering the applicability of the newsworthiness exception to Section 51,
“[n]ewsworthiness” and “public interest” “have been construed in most liberal and far-reaching
terms to encompass all types of factual, educational and historical data, or even entertainment
and amusement, concerning interesting phases of human activity in general.” Myskina v. Condé
Nast Publ’ns, 386 F. Supp. 2d 409, 417 (S.D.N.Y. 2005) (quoting Psihoyos v. Nat’l Examiner,
No. 97-7624, 1998 WL 336655, at *6 (S.D.N.Y. June 22, 1998)). Specifically, fashion news is
well established to be within the broad sphere of newsworthy reporting. See, e.g., Stephano, 64
N.Y.2d at 184 (“The newsworthiness exception applies not only to reports of political
happenings and social trends, but also to news stories and articles of consumer interest including
developments in the fashion world”) (emphasis added) (internal citations omitted); Abdelrazig v.
Essence Commc’ns, 225 A.D.2d 498, 498 (1st Dep’t 1996) (holding that article concerning
“fashion trends in the Black community” was newsworthy and thus outside the reach of § 51).
Here, the Editorial Feature is plainly newsworthy because it was reporting about
Spring 2020 designer collections, and appeared in Vogue, a well-established editorial publication
covering the fashion industry. See Creel v. Crown Publishers, Inc., 115 A.D.2d 414, 416 (1st
Dep’t 1985) (“The focus of inquiry in applying the ‘public interest’ exception is not only upon
the particular photograph but also upon the article or book within which the photograph
appears”). The Plaintiffs were photographed as hired models to walk the runway in fashion
26
shows – the purpose of which was to generate attention for the clothes they were wearing.19 In
short, photographs of the models who walked the runways wearing the designers’ fashions is a
matter of interest to Vogue’s readership.
2. The Photographs Bore a “Real Relationship” to the Subject Matter of

the Article
Like the “public interest factor,” New York courts also construe the “real relationship”
test broadly, including nearly all photographs presented in conjunction with newsworthy content
unless “the picture complained of has so tenuous a connection with the article that it can be said
to have no legitimate relationship to it.” Lahiri v. Daily Mirror, 162 Misc. 776, 783 (Sup. Ct.
N.Y. Cty. 1937). Where, as here, the challenged photographs of models wearing designer
clothing directly illustrate the subject of the article – those designer’s clothing – there is an
obvious, incontrovertible “real relationship.” Dominguez v. Vibe Magazine, 21 Misc. 3d
1122(A) (Sup. Ct. N.Y. Cty. 2008) (photographs of women dressed as topless mermaids at a
party bore reasonable relationship to an article about the party); Myskina, 386 F. Supp. 2d at 419
(revealing photographs of tennis player had “real relationship” to article about her in magazine).
Since Vogue used photographs of Plaintiffs to illustrate the designer works modeled by
Plaintiffs, the photographs bore a “real relationship” to the subject matter.
3. The Editorial Feature Is Not Advertising in Disguise
The Complaint does not plausibly infer that the Vogue Runway Editorial Feature is an
advertisement in disguise. “The ‘advertisement in disguise’ exception is very narrowly
construed.” Cruz v. Latin News Impacto Newspaper, 216 A.D.2d 50 (1st Dep’t 1995) (“Even a
19
This alone precludes liability since a plaintiff cannot maintain a Section 51 claim arising from published images of
the plaintiffs’ public appearance at a public fashion show. See Ann-Margaret v. High Soc’y Magazine, Inc., 498 F.
Supp. 401, 405 (S.D.N.Y. 1980) (holding that Section 51 does not apply to accurate representation of a plaintiff’s
public performance).
27
fashion article which directs the reader’s attention to specific stores and their wares is not an
‘advertisement in disguise’”) (quoting Stephano, 64 N.Y.2d at 180). “Often mentioned in
dictum, the concept has only rarely resulted in a finding of liability for invasion of privacy or
infringement of publicity rights.” J. Thomas McCarthy & Roger E. Schechter, The Rights of
Publicity and Privacy § 8:100 (2d ed. 2020).
(a) The Advertising Component Here Was Merely Incidental
In the rare instances where courts have found that a challenged publication was an
advertisement in disguise, those courts held that advertising was the primary purpose of the
challenged publication at issue. See, e.g., Robinson v. Snapple Beverage Corp., No. 99 CIV.
344(LMM), 2000 WL 781079, at *2 (S.D.N.Y. June 19, 2000) (where rappers’ pictures and
voices were used in a vignette promoting goodwill games, “the Court is unable to even find a
disguise”); Beverley v. Choices Women’s Med. Ctr., 78 N.Y.2d 745, 752 (1991) (calendar
commemorating women’s rights, which was widely disseminated to promote defendant’s
medical services business, was “on its face” an advertisement); Morse v. Studin, 283 A.D.2d 622
(2d Dep’t 2001) (plastic surgeon’s use of “before” and “after” photographs of plaintiff in a
“newsletter” mailed to 4,000 patients and containing gift certificates for free consultations held
to be an advertisement in disguise); Selsman v. Univ. Photo Books, Inc., 18 A.D.2d 151, 152 (1st
Dep’t 1963) (user manual for Minox camera that included unauthorized images of plaintiff held
to be an advertisement in disguise because “the evident purpose is to extoll the virtues not of
miniature camera generally but of the Minox camera in particular”). On the other hand, where,
as here, “the advertisement is merely incidental to a privileged use[,] there is no violation of
§ 51.” Lerman, 745 F.2d at 130.
The facts here are easily distinguishable from those cases where courts found that
advertising was the primary purpose of a challenged publication. Vogue is a respected and
28
established editorial publication, and as the exhibits to the Complaint make clear, the primary
purpose of the Editorial Feature was to present designer outfits modeled at the Spring 2020
Ready-to-Wear show, not to sell clothes on Moda. Plaintiffs simply omit from their Complaint
that their images were used to illustrate editorial coverage, including articles providing
commentary and analysis dissecting each designer’s work. The editorial nature of the Feature is
made even more clear when viewed in the total context of Vogue’s website, which provides
extensive coverage on a wide range of issues, including current events, beauty, and culture.20
The primary, editorial purpose of the Vogue Runway feature is further evidenced by the
fact that Vogue has long included virtually identical runway features without any “Shop This
Look” links. Plaintiffs cannot plausibly contend that the Editorial Feature was nothing more
than an advertisement in disguise since the feature stands alone without the hyperlinked button
Plaintiffs’ claim rests on. In addition, as described above, and as illustrated by the exhibits to the
Complaint, Vogue Runway includes advertisements from many other companies as varied as
Hermes, Levi’s, Best Buy, Land O’Lakes, and Mango. Given the foregoing, it is nonsensical
that the primary purpose of the Editorial Feature nevertheless is to generate revenue for Moda.
The photographs of Plaintiffs were clearly published to illustrate coverage of a fashion show, the
way Vogue has done before and after the inclusion of an incidental advertisement. There is
simply no basis for suggesting that the Plaintiffs’ photographs fit within the “very narrowly
construed” advertisement in disguise exception. Cruz, 216 A.D.2d at 50.
20
Since the primary purpose of the Editorial Feature was to present Spring 2020 Ready-to-Wear collections, and the
use of Plaintiffs’ images were incidental to that primary purpose, this also constitutes an independent ground for
dismissing Plaintiffs’ Section 51 claim under the so-called “incidental use” exception to liability. For example, in
D’Andrea v. Rafla-Demetrious, 972 F. Supp. 154, 157 (E.D.N.Y. 1997), aff’d, 146 F.3d 63 (2d Cir. 1998), the court
held that the use of plaintiff’s photograph in a medical school brochure could not give rise to a Section 51 claim
because he was just one of 41 others pictured in the brochure and the use “was unquestionably incidental to the main
purpose of the document, i.e., to provide information about [the school’s programs] . . . . His photograph did not
provide any information about the curriculum or opportunities available at [the school].”
29
(b) Close Proximity to Advertising Does Not Transform an Editorial

Feature into an Advertising in Disguise
A right of publicity claim does not arise simply because advertising appears incidental to
or adjacent to the editorial use – if that were true, it would eviscerate the newsworthiness
exception completely, since editorial coverage on matters of public interest is almost always
presented side-by-side with paid advertising. And often that advertising will have an obvious
connection to the content of the editorial feature. See, e.g., Lopez, 70 A.D.2d at 361 (“make-
over” feature in Seventeen Magazine held not to be an advertisement in disguise where the article
mentioned the product of a manufacturer who advertised in that issue); Hoffman, 255 F.3d 1180
(magazine article that superimposed Dustin Hoffman’s head on to a model’s body, identified in
the text as wearing Ralph Lauren shoes, was not an advertisement, even though there was a
Ralph Lauren advertisement in the magazine and a “Shopper’s Guide” that identified the price of
the shoe and retailers selling the shoes).
In Stephano, 64 N.Y.2d 174, for example, the New York Court of Appeals held that the
unauthorized use of a professional model’s photograph in a fashion column about the availability
of a bomber jacket for purchase was within the newsworthiness exception. The court held in that
case that there was no triable issue of whether the column was an actionable advertising usage,
even though it stated that the pictured bomber jacket “features the same cut at a far lower price—
about $225,” and included the approximate date it would be available, along with the names of
the stores where it could be purchased. Id. at 179; see also Figure. 3. By contrast, as reflected in
Figure 3, the main components of the Editorial Feature slideshow are the Vogue logo, the name
of the feature, “Spring 2020 Ready-to-Wear,” the name of the designer and the small, red “Shop
This Look” text box at the bottom of the screen, linking to Moda’s site.
30
Figure 3: “Best Bets” Column from Stephano (l), and screenshot Vogue Runway
Compl. Ex. 1, Dkt. 1-1 at 32
Moreover, the Vogue Runway Editorial Feature bears several of the characteristics that
the Court of Appeals cited in Stephano as indicative of newsworthiness, and not an “advertising
in disguise.” For example, both the New York Magazine “Best Bets” column at issue in
Stephano and the Vogue Runway Feature at issue here were “regular news feature[s] of the
editorial portion of the magazine, designed to provide readers with information,” and the
information was provided solely for newsworthy purposes without respect to “advertising
concerns.” Stephano, 64 N.Y.2d at 180. A side-by-side comparison shows that the “Best Bets”
column at issue in Stephano contained far more advertising content that the Vogue Feature here.
See Figure 3.
31
In Stephano, the court also held that the “Best Bets” column at issue was not
advertisement in disguise, because the magazine received no payment for mentioning items in
the column. 64 N.Y.2d at 180. The same is true here: while Vogue could receive payments
from Moda Operandi related to the “Shop This Look” button on its webpage, Plaintiffs do not
allege (nor could they) that the decision to include any particular photographs or designer works
was influenced by Moda; to the contrary, selection of the photographs was driven solely by the
editorial purpose of Vogue – coverage of the Spring 2020 Ready-to-Wear collection. See, e.g.,
Lopez, 70 A.D.2d at 361 (beauty make-over feature that identified specific products sold by
Seventeen’s advertisers was not an advertisement in disguise where there was no evidence that
the article was prepared in conjunction with the advertisers). Again, the best evidence on that
point is that the current online version retains the photographs of Plaintiffs, but excludes the link
to Moda’s site. Vogue’s coverage stands alone, with or without Moda’s advertising.
Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664 (2010) is also instructive. In that
case, the plaintiffs asserted a claim under California’s commercial misappropriation statute, Cal.
Civ. Code § 3344,21 arising from the use of their names in a Rolling Stone magazine “four-page
foldout” feature entitled, “Indie Rock Universe” – that was interwoven with advertising for Camel
cigarettes. Id. The court in that case found that the feature was “noncommercial speech as a
matter of law,” because “a magazine’s editorial content [is not] deemed transformed into
commercial speech merely because of its proximity to advertisements touching on the same subject
matter:” Id. at 683, 687.
As we have already noted, while the magazine is “engaged in commerce,” it is not

engaged in the production, distribution, or sale of cigarettes. Nor does it represent
21
Like New York’s statute, Cal. Civ. Code § 3344 allows for recovery of damages when “any person who
knowingly uses another’s name, . . . photograph, or likeness, in any manner . . . for purposes of advertising
. . .without such person’s prior consent . . . .” Stewart, 181 Cal. App. 4th at 680. The statute includes a newsworthy
exception. Id.
32
cigarette manufacturers. . . . While advertising naturally assists in the financing of

the magazine, the publication’s editorial purpose is the presentation of written
analysis of the contemporary American scene—noncommercial speech.
Id. at 684 (citing Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002)).
Like the defendant in Stewart, Vogue is an editorial magazine that sells advertising to
retailers, but is not itself alleged to be “engaged in the production, distribution, or sale” of the
retail goods sold by Moda. Stewart, 181 Cal. App. 4th at 684. Like Rolling Stone (and New
York Magazine), Vogue “is primarily a periodical commentating on events of [fashion] and
cultural interests of the day,” whose advertisers help finance Vogue’s noncommercial speech.
Id. Furthermore, like Rolling Stone in the Stewart case, Plaintiffs have not alleged that there was
any coordination between Vogue and Moda in making editorial decisions with respect to Vogue
Runway. See id. at 688.
Ultimately, the Vogue Runway Spring 2020 Ready-to-Wear feature was the kind of
comprehensive, in-depth editorial coverage of emerging styles and trends that Vogue has been
delivering for more than 100 years. Since the mere presence of related advertisement does not
change the fundamentally public interest character of this work, Section 51 liability cannot lie.
33
CONCLUSION
For the foregoing reasons, the Complaint should be dismissed with prejudice.
Dated: New York, New York

January 15, 2021
Respectfully submitted,
DAVIS WRIGHT TREMAINE LLP
By:
Elizabeth A. McNamara
Adam I. Rich
1251 Avenue of the Americas, 21st Floor
New York, NY 10020-1104
(212) 489-8230 Phone
(212) 489-8340 Fax
Email: lizmcnamara@dwt.com
adamrich@dwt.com
Attorneys for Defendants Advance Publications,
Inc. d/b/a Condé Nast and Advance Magazine
Publishers, Inc. d/b/a Condé Nast
34

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Case 1:20-cv-07255-LAK Document 20 Filed 01/15/21 Page 1 of 41

UNITED STATES DISTRICT COURT

MEMORANDUM OF LAW IN SUPPORT OF

DAVIS WRIGHT TREMAINE LLP

Attorneys for Defendants Advance Publications,

PRELIMINARY STATEMENT .....................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................4

I. THE COMPLAINT FAILS TO STATE A CLAIM FOR FALSE

II. PLAINTIFFS’ STATE LAW CLAIM SHOULD BE DISMISSED FOR LACK

III. PLAINTIFFS FAIL TO STATE A CLAIM FOR VIOLATION OF THE NEW

Albert v. Apex Fitness, Inc.,

Ann-Margaret v. High Soc’y Magazine, Inc.,

Bell Atl. Corp. v. Twombly,

Bi–Rite Enters., Inc. v. Button Master,

Brown v. Showtime Networks, Inc.,

Brzak v. United Nations,

Burck v. Mars, Inc.,

Cave v. E. Meadow Union Free Sch. Dist.,

Chambers v. Time Warner, Inc.,

Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Grp., Inc.,

Cummings v. Soul Train Holdings, LLC,

DeClemente v. Columbia Pictures Indus., Inc.,

DiFolco v. MSNBC Cable LLC,

Dryer v. National Football League,

E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc.,

Gary Friedrich Enters., LLC v. Marvel Enters., Inc.,

Gottlieb Dev. LLC v. Paramount Pictures Corp.,

Groden v. Random House, Inc.,

Groucho Marx Prods. v. Day & Night Co.,

Guthrie Healthcare Sys. v. Contextmedia, Inc.,

Hirsch v. Arthur Andersen & Co.,

Hoffman v. Capital Cities/ABC, Inc.,

Hollander, v. Pressreader, Inc.,

LaFaro v. N.Y. City Cardiothoracic Grp.,

Lee v. Black Entm’t Television, LLC,

Lemerond v. Twentieth Century Fox Film Corp.,

Lerman v. Flynt Distrib. Co.,

Lerman v. Flynt Distrib. Co.,

LMNOPI v. XYZ Films, LLC,

Mathews v. ABC Television, Inc.,

May v. Sony Music Entm’t,

Myskina v. Condé Nast Publ’ns,

New Kids on the Block v. News Am. Publ’g. Inc.,

Nora Beverages, Inc. v. Perrier Grp. of Am., Inc.,

Orient Exp. Trading Co. v. Federated Dep’t Stores, Inc.,

Pelton v. Rexall Sundown, Inc.,

Pirone v. MacMillan, Inc.,

Polaroid Corp. v. Polarad Elecs. Corp.,

Psihoyos v. Nat’l Examiner,

Renxiong Huang v. Minghui.org,

Robinson v. Snapple Beverage Corp.,

Scholastic Inc. v. Stouffer,

Two Pesos, Inc. v. Taco Cabana, Inc.,

United We Stand Am. Inc. v. United We Stand, Am. N.Y., Inc.,

Yankee Publ’g Inc. v. News Am. Publ’g Inc.,

Abdelrazig v. Essence Commc’ns,

Arrington v. N.Y. Times Co.,

Bement v. N.Y.P. Holdings, Inc.,

Beverley v. Choices Women’s Med. Ctr.,

Creel v. Crown Publishers, Inc.,

Cruz v. Latin News Impacto Newspaper,

Dominguez v. Vibe Magazine,

Finger v. Omni Publ’ns Int’l, Ltd.,