Car manufacturer sued for using Instagram photos in ads. SCHROEDER v. VOLVO

Car manufacturer sued for using Instagram photos in ads. SCHROEDER v. VOLVO

A copyright is a set of exclusive rights granted to the creator of a new work of expression.  When a creator fixes a work in a tangible medium they are automatically granted a copyright to the work.  The creator can strengthen the rights associated with the copyright in the United States by registering the work with the United States Copyright Office, but registration is required for a copyright to be granted.  The owner of a copyright is granted the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original, if someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.  When a copyright owner feels that their copyright is being infringed on they can request an injunction and damages.  But, an accusation of copyright infringement is just the beginning of the process.

To prove copyright infringement, a plaintiff must establish (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.  This kind of copying can be proven either with direct evidence that the defendant actually copied the work, or by showing that the defendant (i) had access to the work and (ii) that the works are substantially similar.  This is all based on the assumption that the defendant’s copying was done without permission.  If it turns out that the defendant had a license to copy the work, either explicit or implied, then copyright infringement has not occurred.

Many people use social media to keep in touch with friends or promote themselves professionally.  Social media can be considered a ubiquitous part of life.  When a user signs up for a social media platform, they must agree to a Terms of Use agreement that few people actually take the time to read.  The right to republish media uploaded by a user is a  common section found in social media Terms of Use agreements.  While this may seem trivial to users that are using social media for fun, it can have an unintended consequence for professionals using social media to promote themselves.  Professional photographers make their income selling photographs and protect that income using copyright law.  If a social media platform can license photographs uploaded by a professional photographer, that can hurt a photographer’s ability to make a living.

The question then becomes, when a copyright owner uploads  copyrighted work to a social media platform, can that work be licensed without the permission of the copyright owner?

JACK SCHROEDER, v. VOLVO GROUP NORTH AMERICA, LLC, 2:20-cv-05127 is a case which touches upon this specific issue.

Plaintiff in this case is a professional photographer that had a photo shoot in a field of flowers.  Plaintiff used a vehicle manufactured by the Defendant as a prop in the photo shoot.  Plaintiff posted several exceptionally well done photographs on the social media platform, Instragram.  Examples of Plaintiff’s photographs are reproduced above.

April 2019, Defendant asked Plaintiff for permission to use Plaintiff’s photographs in an advertising campaign. Plaintiff declined the Defendant’s request.  Defendant used Plaintiff’s photographs in an advertising campaign.  Plaintiff repeatedly asked the Defendant to stop using his photographs and when Defendant did not respond, Plaintiff filed a complaint for copyright infringement.

In the abstract this may seem like an open and shut case.  Plaintiff took a picture, Defendant republished that picture without permission, normally that would be copyright infringement. Complicating things is the fact Plaintiff uploaded his pictures to Instagram. Many social media platforms have terms of use agreements that give the platform the right to license media uploaded to the platform.  Defendant may not be liable for copyright infringement if Instagram had the right to license Plaintiff’s photographs.

Recently Instagram restated its terms of use to make it clear that republishing a photograph posted on the social media site may require a license from the copyright owner.  How this affects the dispute between the Plaintiff and Defendant in his case has yet to be seen.

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