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Volvo settles copyright lawsuit after reposting photos for Instagram ad campaign


Volvo has settled a copyright lawsuit after it was sued in federal court in California last year for using another party’s photos for an alleged Instagram ad campaign. In the lawsuit they filed in June 2020, photographer Jack Schroeder and model Britni Sumida accused the Swedish automaker of copyright infringement for using photos Schroeder took of Sumida posing alongside a Volvo S60 in a “global advertising campaign” on Instagram without their permission. After unsuccessful attempts to get Volvo to stop using the images, Schroeder and Sumida took legal action, exposing allegations of copyright infringement, unfair competition and misappropriation of likeness, the latter of which resulted Volvo’s unauthorized use of images featuring Sumida.

In response to the lawsuit, Volvo filed a non-suit in August, arguing that Schroeder and Sumida were in fact the ones wrong because of their use of the brand, image, reputation and reputation. substantial reach of Volvo’s social media. venerable automobile company to promote itself professionally. Volvo claimed that the complainants’ claims that it “unacceptably shared [the] Sumida’s misappropriated photographs and image rights as part of an unauthorized “global advertising campaign” are false and misleading “because there was” no such advertising campaign “. Instead, Volvo claimed it was “just using the basic functionality of the social media sharing / posting platform to repost” Schroeder’s images of his S60 sedan “after Schroeder and others have already posted (and tagged Volvo) the photos on their own public social media accounts. ”

The crux of Volvo’s argument was that by posting the photos to Instagram in the first place, Schroeder granted it an implicit license to repost the photos under Instagram’s license terms.

Beyond that, Volvo asserted that “by scoring [it] in the subject’s photographs’ – and sharing them with Volvo, “Schroeder granted [it] an implied non-exclusive license to share the photos on Instagram and other social media sites. Referring to the Ninth Circuit jurisprudence, Volvo stated that such a non-exclusive license “may … be implied in conduct”, which is precisely what happened in this case, by Volvo, when Schroeder made the images accessible to the public. and tagged Volvo in them.

In the wake of the court’s dismissal of Volvo’s motion to dismiss after refusing to take judicial notice of a set of documents relied on by the automaker, Volvo filed its response in September 2020, dismissing most of the claims. Complainants’ claims and setting out a handful of claims of its own. Mainly, Volvo (kinda scratching your head) charged Schroeder and Sumida with trademark infringement for posting photos that “displayed and prominently displayed Volvo’s name, Volvo’s distinct and protected logo, and a motor vehicle. which exhibits unique design features immediately identifiable with the Volvo brand. and automotive product line. Because they tagged Volvo in articles featuring the S60 sedan, the car co. stated that “anyone looking for Volvo … would be able to find these photographs and videos” and might be confused “as to the source, origin, endorsement and sponsorship of the Volvo”.

Specifically, Volvo alleged that “the forged messages misrepresented to consumers and the auto industry that Volvo had hired Schroeder and / or Sumida to conduct the filming and had authorized [them] commercially exploit the images thereof as part of an advertising campaign on social networks for the S60 Sedan.

Volvo also accused Schroeder and Sumida of brand dilution on the grounds that it “works closely with a carefully selected group of advertising agencies and other professionals in the United States to develop marketing campaigns and messages” and that they “diluted Volvo’s famous hallmarks by appropriating the substantial investment Volvo has made in its brands.

Fast forward to December 23, and attorney for Schroeder and Sumida alerted the court that the parties have “reached a full settlement of this matter,” that a formal settlement agreement is being circulated between the parties. parties for consideration and approval, and that the parties expect to file a stipulated dismissal of the entire action with each party bearing its own attorney fees and costs.

Problems with Instagram images

This case may be close to an end, but it nonetheless raises one of the many questions that go along with the allegedly unauthorized use of images first posted to Instagram and other media platforms. social media. The overriding issue centers on Instagram’s terms and whether they provide users with a license that could protect them from liability for copyright infringement if they were to use shared images for the first time. on its platform without the consent of the copyright owner. This has seen brands like Volvo come under fire for re-sharing copyrighted images on their own accounts, but perhaps more often cases have arisen relating to the posts’ practice of embedding images in articles online using social media sharing tools without copyright holders. ‘authorization, prompting claims for copyright infringement.

In terms of integrated imagery, this issue has been at the center of a series of cases in what Craig Whitney of Frankfurt Kurnit Klein & Selz PC recently called “one of the most controversial issues in copyright in the past two years or more. . “In a remarkable case, Nicklen v. Sinclair Broadcast Group, Inc., a federal district court in New York ruled that the unauthorized re-publication of copyrighted content online could violate copyright law by infringing the exclusive right of the owner of the copyright to display the work, whether a copy was created and stored by the alleged infringer or not – or if the image was reposted using Instagram’s API.

In making his decision, Judge Jed Rakoff of the United States District Court for the Southern District of New York City rejected the United States Court of Appeals’ “server test” for the Ninth Circuit, resulting in a potential division of the circuit, such as the ninth circuit “generally judges that embedding content from a third party’s social media account only infringes the copyright of the owner of the content if a copy is stored on the servers of the defendant, ”according to Aaron Rubin, Julie O’Neill and Anthony M. Ramirez of Morrison Foerster. (And Judge Rakoff isn’t the first SDNY judge to do so; Judge Katherine Forrest shot down the server test in a 2018 ruling in Goldman v. Breitbart News Network.)

Shortly after Justice Rakoff dismissed the defendant Sinclair Broadcast’s motion to dismiss, a federal court in San Francisco sided with Instagram in a proposed class action lawsuit, in which photographers Alexis Hunley and Matthew Brauer alleged that the social media site had embarked on a “plan to generate substantial income.” for its parent company, Facebook, Inc. ”, – now Meta -“ by encouraging, inducing and facilitating third parties to commit widespread copyright infringement. According to the plaintiffs, Instagram is secondarily responsible for the copyright infringement for “encouraging third-party online publishers … to use the integration tool.” [on its app] display copyrighted works without [the necessary] license or permission of copyright holders ”, and in the process,“ misled ”the public into believing that“ anyone is free to access Instagram and embed works copyright-protected from any Instagram account, like eating for free at a photo buffet. ”

In a September ruling, Judge Charles Breyer of the U.S. District Court for the Northern District of California said Instagram was not charged with copyright infringement because its embedding tool does not require that A website editor stores a copy of an image or video. , thus respecting the rule of the server of the ninth circuit.

Some of these feuds – and potentially new cases – over social media and the use of copyrighted images are expected to continue through 2022, as businesses, copyright holders and the courts continue to grapple with these issues.