IP Law Daily, PUBLICITY RIGHTS—S.D.N.Y.: Fashion model’s misappropriation claims against travel platform preempted by Copyright Act, (Mar 27, 2026)

By Ravindra Kumar Singh, B.L.

Because all claims arose from the posting of a copyrighted video featuring the model, the model failed to allege any qualitatively different conduct from that protected under copyright.

A federal district court in New York has granted a motion to dismiss the statutory and common law publicity claims brought by a fashion model and social media personality against a travel services platform, holding that the Copyright Act preempted those claims because they were based solely on the defendant’s alleged reproduction of a copyrighted video. The court found that the plaintiff failed to plausibly allege any use of her likeness separate from the copyrighted work itself. However, the court allowed the copyright infringement claim to proceed, concluding that it was independently viable under federal law (Pepaj v. Skiplagged, Inc., No. 1:25-cv-06133-LAP (S.D.N.Y. Mar. 25, 2026)).

Background. The plaintiff, Eva Pepaj, is a model, actress, and social media personality who creates and publishes digital content across various platforms and has a substantial online following. The defendant, Skiplagged, Inc., operates a travel services platform that markets airfare deals and related services, including through its social media presence. The dispute arose from the defendant’s use of the plaintiff’s content on its Instagram account for commercial promotion.

Pepaj asserted copyright in a four-minute satirical video titled “Woman’s Plastic House Gets Destroyed on Flight!”, which she created and published on Facebook. The video was registered with the U.S. Copyright Office. The work depicted the plaintiff engaging in exaggerated COVID-19 precautions during a flight and had garnered millions of views.

The dispute arose after the defendant reposted the video on or about May 22, 2023, allegedly to promote its commercial services. Pepaj filed suit on May 13, 2025, asserting three causes of action: copyright infringement under the Copyright Act, and statutory and common law misappropriation of publicity under California law. Skiplagged subsequently filed a partial motion to dismiss under Rule 12(b)(6), seeking dismissal of the two publicity-based claims.

Pleading standard. The court applied the pleading standard under Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), reiterating that a complaint must allege sufficient factual matter to state a plausible claim. It emphasized that conclusory allegations or recitals of elements without factual support could not survive dismissal.

Preemption framework. The central issue concerned preemption under Section 301(a) of the Copyright Act. Relying on Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022), and In re Jackson, 972 F.3d 25 (2d Cir. 2020), the court applied the two-step test requiring (i) that the subject matter fall within copyrightable works, and (ii) that the asserted rights be equivalent to rights protected under copyright.

Subject matter analysis. The court held that the plaintiff’s video constituted copyrightable subject matter under 17 U.S.C. § 102(a)(6), as an original audiovisual work. Citing Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101 (2d Cir. 2001), it found that the work satisfied the minimal originality threshold.

Pepaj argued that her publicity claims concerned her likeness rather than the video itself. However, the court rejected this characterization, holding that purported likeness claims may still be preempted if they are, in substance, attempts to control the dissemination of a copyrighted work. Citing In re Jackson, the court examined whether the defendant exploited the plaintiff’s identity or merely the value of the video.

The court found the claims to be pretextual. It noted the absence of allegations that Skiplagged suggested endorsement or used Pepaj’s identity beyond reposting the video. Unlike cases such as Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001), where additional commercial use of identity was present, the plaintiff here relied solely on the act of republication.

General scope analysis. On the second prong, the court held that Pepaj’s publicity claims were equivalent to rights protected by copyright. Citing Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004), it emphasized that reproduction and distribution fall squarely within the exclusive rights under copyright law.

Pepaj contended that her damages, based on the commercial value of her likeness, were distinct. The court rejected this argument, citing In re Jackson, and held that differing measures of damages do not alter the nature of the underlying right. It further relied on Melendez, which held that publicity claims are preempted where the alleged misconduct does not extend beyond reproduction of copyrighted content.

Because all claims arose from a single act—the defendant’s reposting of the video—the court concluded that Pepaj failed to allege any qualitatively different conduct.

Disposition. Thus, the court dismissed the statutory and common law publicity claims with prejudice as preempted by the Copyright Act. It allowed the copyright infringement claim to proceed, leaving the core dispute over unauthorized reproduction of the video for further adjudication.

The Case is No. 1:25-cv-06133-LAP.

Judge: Preska, L.

Attorneys: John Vincent Golaszewski (Casas Law Firm, PC) for Eva Pepaj. Irwin B. Schwartz (Petrie Schwartz LLP) for Skiplagged, Inc.

Companies: Skiplagged, Inc.

Cases: Copyright PublicityRights NewYorkNews