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Volvo can’t evade a lawsuit from a photographer and model who say their test shoot photos were used as a social media advertisement without their permission — but the court hasn’t yet analyzed its argument that Instagram’s terms of service provided a license in this situation.
Jack Schroeder and Britni Sumida in June sued Volvo after it used images from their shoot in the southern California desert in an Instagram story in violation of their rights (copyright and publicity, respectively). Volvo, in its motion to dismiss the complaint, argued that Schroeder granted an implied license by posting the photos on Instagram.
U.S. District Court Judge Virginia A. Phillips on Thursday denied the motion and vacated a Sept. 14 hearing, finding there was no need for oral argument on the issue.
The court found Volvo relied on information outside the scope of the matter at hand, such as screenshots of Instagram’s platform and terms of service, in its motion. Phillips declined to take judicial notice of those exhibits, although she notes they’re likely relevant to Volvo’s anticipated affirmative defenses.
“Even if Rule 201 permitted it, the Court would only able to take judicial notice of the existence of the screenshots from these websites, not the truth of the matters asserted therein,” writes Phillips, noting that in order to consider the related exhibits she would need to convert the motion to dismiss to a motion for summary judgment and she declines to do so this early in the litigation.
Because the court declined to grant Volvo’s request for judicial notice, it didn’t reach many of the arguments at issue in its motion to dismiss.
“As the matter of whether Defendant had a license to use Schroeder’s photographs falls outside of the allegations of the SAC and are not facts of which the Court has taken judicial notice, the Court need not address this argument,” writes Phillips. Still, she evaluated whether Schroeder has stated a claim for copyright infringement and found he did.
Volvo had also argued that model Britni Sumida’s claims were preempted by the U.S. Copyright Act, but Phillips disagreed.
“Plaintiffs allege Defendant has created a false impression that Sumida has endorsed Defendant and is ‘passing off’ a relationship with Sumida,” writes Phillips. “The ‘reverse passing off’ principle applies when a producer of a good contends they should have received credit as the source of the good but did not receive that credit. … Accordingly, because the claim does not fall within the subject matter of copyright and because it concerns ‘passing off’ a false association, Plaintiffs’ Lanham Act claim is not preempted by the Copyright Act.”
She found Sumida’s claims for unfair competition are derivative of her Lanham Act claim and are also not preempted by the Copyright Act.
Volvo had also argued that Sumida’s claims failed because the automaker didn’t suggest the model endorsed its cars. Phillips notes that the 9th Circuit applies an eight-factor test in determining whether there has been a likelihood of consumer confusion in a matter involving a celebrity. The factors consider the level of recognition the plaintiff has, the relatedness of the plaintiff to the defendant’s product and evidence of actual confusion, among other things.
Here, Sumida alleges she’s a well-known model and the court, accepting that as true, finds her allegations sufficient to show a likelihood of consumer confusion.
Phillips also found no allegations that Sumida gave her consent to use her likeness in an advertising campaign. And, while Sumida’s entire face and body aren’t shown in each photo, several of the images at issue show her face clearly and it “cannot determine that Sumida is not readily identifiable” in the photos.
The automaker must file its answer to the second amended complaint by Sept .30.
Jeff Gluck, an attorney for Schroeder and Sumida, sent The Hollywood Reporter a statement in response to the decision via email. “This is yet another compelling reason why Volvo should apologize to the creative community and resolve this dispute,” writes Gluck. “They have handled this matter the wrong way right from the start and this meritless motion never should have been brought in the first place. The irresponsible self-serving rhetoric could erode artists’ rights and impact millions of people and it needs to stop.”
Volvo also sent THR a statement. “Volvo Car USA has the utmost respect for the creative rights of all artists,” it reads. “It always has and always will compensate artists for work used in its advertising and marketing campaigns. In this case the company did not use Mr. Schroeder’s photos in any paid advertising campaign, it simply reshared photos on its own social media platforms after being tagged by Mr. Schroeder, and immediately deleted them when requested. We look forward to defending the claims based upon the facts and circumstances of this case.”
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