Contributing Author: Nicholas Rozansky
The suit, brought by a photographer and the model he photographed, accuse Volvo of copyright violation, unfair competition, false endorsement, and misappropriation of the model’s likeness. The post in question was an Instagram Story that Volvo posted, featuring photographs of the model posing with one of its cars, and subsequently including a link to Volvo’s website.
Copyright claims by photographers, many of whom post their work to social media, are nothing new. Targets of these suits have included everyone from Ariana Grande and Justin Bieber to Jennifer Lopez and the Kardashians -celebrities and influencers who have monetized their social media feeds and can make six figures per post for sponsored content. But for brands, whose social accounts and their own websites are a form of advertising, it can be less clear-cut, and they must be especially careful when navigating these issues.
Volvo, in a motion to dismiss (PDF) the suits, claims that by posting the photos publicly, and by tagging the Volvo account in the posts, the images were subject to re-sharing, and a license was implied. Their motion also holds that the model has no claim regarding Volvo’s redistribution of the images, and asserts that the model agreed to be photographed with the car and have the images published, and thus brought any confusion on endorsement on herself.
Jeffrey Gluck, a lawyer for photographer Jack Schroeder and model Britni Sumida, repeated a warning many have voiced about the dire implications of assuming free use of publicly-posted content. “Volvo’s argument, that they can allegedly take and exploit ANY photo publicly posted on Instagram, is dangerous, chilling, and wrong,” Gluck said in a statement to The Hollywood Reporter. “The entire global creative community should be on high alert, and Instagram should speak up immediately. The creative rights and livelihoods of millions of people are now at stake.”
In a case heard by a different judge from the very same district court, the question of embedding (in this instance a tweet) being a “display” that can infringe on copyrights resulted in a different conclusion. Goldman v. Breitbart News Network LLC et al. saw a settlement out of court after a widely-criticized decision for partial summary judgement in favor of the photographer, whose photo had been included in an embedded tweet without permission.
Legal Entertainment reached out to both an attorney for the plaintiff and Volvo USA, and has not received a response at the time of publishing. We will update this article if and when we receive a response.
Nicholas Rozansky, Partner at Brutzkus Gubner Rozansky Seror Weber, has significant experience counseling plaintiffs and defendants in all types of litigation, including commercial, corporate and business, and intellectual property.