6:15am PT by Ashley Cullins
Instagram Sharing Rights At Center of Photographer's Legal Battle
On a sunny day in April 2019, photographer Jack Schroeder and model Britni Sumida took a shiny white Volvo S60 out into the Southern California desert for a test shoot amid a superbloom of bright orange poppies. He took about a thousand images and posted a handful to Instagram, tagging Volvo and capturing the automaker’s attention. The company posted a comment asking to share the photos and encouraging him to respond with the hashtag #YesVolvoUSA to accept. Schroeder instead emailed Volvo, offering to negotiate a license, and sent a link to his online portfolio. He didn’t receive a reply. Six months later, Volvo posted an Instagram story featuring a collection of Schroeder’s photos that linked to a site where users could buy the vehicle.
Now the auto giant and the photographer are embroiled in a legal dispute, with Schroeder claiming that his copyrights have been infringed. Sumida, who has a deal with another major car company that prevents her from working with its competitors, is suing Volvo for unfair competition, false endorsement and misappropriating her likeness. In an Aug. 10 motion to dismiss, Volvo is defending itself with an argument that has become a hot topic among content creators, brands, public figures and lawyers. The automaker says that by posting the photos to Instagram, the photographer made his work publicly available and subject to resharing by others.
Further, Volvo argues, by tagging the company, Schroeder granted it an implied license. Instagram’s terms of service are central not only to this fight but also to other disputes examining the rules around embedding posts. In order to use the Facebook-owned photo app, users agree to grant Instagram “a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works.” It’s “sub-licensable” that’s key here, with Volvo arguing that it simply sublicensed the images from Instagram.
“It’s like they haven’t read the terms of service that they selectively quote from,” says attorney Stephen Doniger, who is representing photographer Elliot McGucken in a copyright infringement suit against Newsweek over its use of an embedded Instagram post. He points to the social media company’s platform policy — specifically, one provision that requires users to obtain a person’s consent before using their content in any ad and a second that says a user represents and warrants that they own or have secured all rights. Adds Doniger, “I think this motion is doomed to go down in flames.”
Schroeder and Sumida’s attorneys made similar arguments in an Aug. 24 opposition to Volvo’s motion. They also note that case law in McGucken’s dispute, and another between photographer Stephanie Sinclair and tech site Mashable, works in their favor. In those cases, courts ruled that some investigation was necessary before deciding whether Instagram allows third parties — explicitly or implicitly — to use the photos posted on the site.
The photographer and model also argue that Volvo is misrepresenting how Instagram tagging works. “On first reading, it may appear that Volvo is asserting that tagging a user distributes the post to that user’s followers (i.e. that the post ends up in the follower’s feeds),” states the opposition. “But Volvo does not and cannot represent as much. Indeed, if tagging worked this way, many would tag the Dalai Lama or Donald Trump in posts of their cat, in order to easily reach a wide audience.”
Schroeder and Sumida’s attorney Jeffrey Gluck warns that, if Volvo’s argument succeeds, it won’t just affect photographers and other creators who share their work on the site — even family pictures posted by ordinary people.
“Volvo’s argument, that they can allegedly take and exploit ANY photo publicly posted on Instagram, is dangerous, chilling, and wrong,” Gluck tells THR. “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.”
Instagram didn’t reply to a request for comment, but, in response to the suits involving embedding, a Facebook spokesperson in June told Ars Technica, "Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law."
With regard to Sumida’s claims, Volvo argues that any confusion as to whether the model was endorsing the S60 is “self-inflicted” because she consented to be photographed with the vehicle and allowed the photos to be published by Schroeder. The carmaker also argues that her issues with Volvo distributing the images without her permission are preempted by the Copyright Act and that her misappropriation claim fails because she’s not “readily identifiable” in the pictures.
Sumida is pushing back, arguing in the opposition that the copyright act doesn’t pre-empt her claims because “in advertising cases like this one, the plaintiff’s complaint is not simply that copies of the work depicting him or her were distributed—but rather that his likeness (an intangible and non-copyrightable thing) was used commercially.” She also shoots down Volvo’s “self-inflicted” argument as the “the Lanham Act equivalent of a ‘she was asking for it’ defense.” The opposition, which was filed by Schroeder and Sumida’s co-counsel David Erikson, argues Sumida posing with a Volvo doesn’t amount to giving consent for her likeness to be used in an ad. (Read the full opposition below.)
Entertainment attorney Jennifer Ko Craft, whose clients include the Kardashian-Jenner family and Sylvester Stallone, says that while many pundits are focusing on the copyright implications, it’s Sumida’s publicity and false association claims that get “really sticky and interesting.” She adds: “Are they making consumers believe there is an endorsement or promotion or sponsorship by the model of the Volvo brand? To me, yeah. It does look like an advertising campaign.” While each case is fact-specific, and Ko Craft isn’t necessarily worried about a chilling effect if Volvo succeeds on its motion, she is watching the matter closely. “I’m looking at it from talent’s perspective to see how this affects my clients,” she says. “Anyone who uses this platform should be mindful of what’s going on.”
A version of this story first appeared in the Aug. 26 issue of The Hollywood Reporter magazine. Click here to subscribe.