This is an old argument given new life with a recent court filing by Swedish automaker Volvo.
The company finds itself accused of copyright infringement by automotive photographer Jack Schroeder and model Britni Sumida and Volvo's response uses an argument even the social media service itself said holds no water.
Basically, in its simplest form, Volvo argues that they didn’t commit the copyright infringement alleged by the complainants because Instagram posts are public and free to use, PetaPixel reports.
It all started in April 2019 when Schroeder and Sumida teamed up to take some pictures, some of which featured a Volvo sedan in the background. Volvo asked the photographer, Schroeder, for permission to use the photos on social media – without compensation – and, when countered with the option to license the photos for a fee, the company basically ghosted him. That would be the end of the story except for Schroeder’s Instagram pictures as well as some he posted on the website Behance showed up in Volvo’s social feeds on Instagram and Pinterest. To add further complication, and likely something that was completely unknown to Volvo, the posts featuring Sumida put her on the outs with another carmaker with whom she had signed a modeling contract. The complainants reported that the company never responded to them and thus they initiated the lawsuit.
In its response, Volvo cited Instagram’s own Terms of Service:
“The terms of the direct and indirect usage rights licensed to users under the IG Terms are extremely broad. The terms of these licenses do not state, nor can they reasonably be interpreted as stating, that Volvo may only re-share publicly posted content on the Instagram platform. Volvo thus had the right to make copies of the publicly posted Instagram Photographs and post those copies on third party sites or platforms such as Pinterest.”
Put more simply, Volvo is asserting that having a public account and posting images to Instagram gives others the right to use that content without paying for a license.
The complainants’ lawyer Jeff Gluck has responded to Volvo’s argument, explaining to PetaPixel: “Volvo’s argument, that they can allegedly take and exploit ANY photo publicly posted on Instagram, is dangerous, chilling, and wrong. The entire global creative community should be on high alert, and Instagram should speak up immediately. It goes without saying that Volvo’s argument has absolutely zero legal merit and we look forward to further educating their counsel during trial. We will make sure that this case proceeds to a final verdict in order to protect the creative rights of millions of people.”
What do you think of Volvo’s assertion that Instagram pictures are free to use? Let us know your thoughts on this in the comments section below if you like.
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Did the photographer get Volvo’s consent to feature its branding in a commercial shoot? It works both ways.
Seems to me, Volvo would need a model release to use her photo. The Volvo was probably in public view, so to me that would blow Volvo’s claim out of the water. They probably didn’t go out looking for a Volvo to photograph with, it just happened to be in the area.