Casey is an entertainment and digital media law attorney who helps influencers and creative entrepreneurs who struggle with navigating the legal side of their businesses and brands, specifically as it relates to contracts. She prides herself on helping creatives negotiate fair deals with Fortune 500 companies and leading entertainment brands, all while helping them build legally sound businesses that are built for generational wealth and impact. Here on the podcast, she normally does that through sharing the stories of successful entrepreneurs and influencers to help you learn from their mistakes. But occasionally, like today, switches things up and highlights popular culture. 

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4 Key Takeaways

 

  • The Terms & Conditions and Website Policies MATTER! Note that Instagram is not a part of this dispute at all, because they have publically accessible use contracts that every user agrees to when they set up an account. This dispute is about how those terms will be interpreted. So, if you’re a business owner, make sure you protect your business with the proper Terms & Conditions, and Policy.

 

  • As a user of these types of social media websites, it is important to know how your content can be used, and post with that in mind.

 

  • If you are in a brand contract as an influencer, you have to be very careful to understand what will breach the contract and not do anything that could possibly be construed as a breach. 

 

  • 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.

 

Show Notes

 

[3:38] – Background of the Volvo IG Dispute

 

  • 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.

 

[7:28] – Understanding Instagram’s ToS & Copyright Law

 

  • 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.

 

  • Flip Side: Instagram’s Policy 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.

 

  • Courts have ruled that some investigation was necessary before deciding whether Instagram allows third parties — explicitly or implicitly — to use the photos posted on the site, in similar disputes.

 

[13:34] – IG’s response?

 

  • 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.”

 

[16:05] – Key Takeaways

 

  • ToS/Use and website policies are IMPORTANT!
  • You NEED to know how your content can be used, according to the terms of the platforms you’re using. Make sure you add any notices that are necessary to protect your rights.
  • As an influencer you should ALWAYS be careful to understand your contracts and what will breach them. Exclusivity and Licence provisions are a HUGE part of every brand deal. (Check out my Influencer Agreement Checklist for help with that)
  • The ruling on this case will affect everyone. Knowing when your content can be used by others should be a part of deciding what services and websites you use.

 

Resources Mentioned During This Episode

 

  1. Influencer Agreement Checklist
  2. Terms of Use and Policy Templates

 

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