Several months ago, you may have seen social media filled with artistic renditions of your connections as paintings, cartoons, or other artistic styles. These renditions came from Lensa, an app by which users upload “selfies” or other photos, which the app processes to generate artistic images of the user. Lensa, which is owned by Prisma Labs, Inc., is the latest subject of a putative class action brought under the Illinois Biometric Information Privacy Act (“BIPA”).

In Flora, et al., v. Prisma Labs, Inc., No. 5:23-cv-00680 (N.D. Cal.), Plaintiffs—a group that includes a minor child—are residents of Illinois who used the Lensa app to create artistic images of themselves. Plaintiffs allege that they used Lensa in December 2022, after the app exploded in popularity in November 2022 due to the launch of the “magic avatars” feature, which requires users to upload at least eight images of themselves (and up to 20 images) to create artistic, stylized “avatars” of the user’s face. The app can also be used to upload images of others, and create avatars based on those images. Plaintiffs allege that Lensa’s privacy policy as of December 2022 did not inform users that their facial geometry would be collected to create the avatars, and that several oblique references to Lensa’s use and processing of users’ images lead users to believe that their biometric data is “anonymized” and does not leave the user’s device—which seemingly contradicts Lensa’s model of collecting users’ images and generating avatars based on those images. The Complaint also alleges that Lensa’s privacy policy temporarily disclosed that “face data” will be used to “train” its “neural network algorithms,” but that the provision was subsequently removed, and never included provisions of how that data would be protected or disclosed.

Based on the allegations in the Complaint, Plaintiffs seek to represent a class of “All persons who reside in Illinois whose biometric data was collected, captured, purchased, received through trade, or otherwise obtained by Prisma, either through use of the Lensa app or otherwise.” Plaintiffs bring seven causes of action under Sections 15(a), 15(b)(1), 15(b)(2), 15(b)(3), 15(c), 15(d), and 15(e) of BIPA, as well as an additional claim for unjust enrichment based on Lensa’s paid subscription service.

The Complaint also raises additional concerns about Lensa’s business model and methods of generating images. For example, upon downloading the app, a user is prompted to begin a seven-day trial subscription with Lensa; the Complaint alleges that the app uses dark patterns to prompt users to choose this option, rather than closing out of it and declining the trial subscription. The Complaint also alleges that Lensa uses Stable Diffusion to generate images, which is an open-source AI model trained on over 2 billion copyrighted images, including images that are protected by copyright. As alleged in the Complaint, the system could violate the intellectual property rights of artists who own the copyrights in the images used to train the AI model.

Flora is similar to past BIPA class actions brought against apps that allow users to virtually “try on” makeup, clothing, or other beauty items, as well as class actions brought against entities that use images to “train” models of AI. Plaintiffs are represented by Loevy & Loevy, which notably prevailed in the first BIPA case to go to trial, Rogers v. BNSF Railway Company. Privacy World will continue to keep an eye on how this case develops for you.