In law school, they teach you to trot out the “parade of horribles” to illustrate the dire eventualities that will come to pass should your adversary’s flimsy and totally-pushing-it argument be adopted by the court. Most of those horribles wither on the vine, but the mere specter of the very bad things that would no doubt result should opposing counsel’s novel argument gain purchase can often be persuasive.
What almost never happens, though, is that one lines up a parade of horribles for the court (or one’s readership) and seemingly the very next moment the horrible shows up, grunting and fulminating and dripping with ooze. Now, though, nothing is normal, so it should not have been surprising when Volvo’s attempted Instagram scam became public.
Back on May 6 of this year, or approximately 100 years ago, your author broke down the happenings in the case Sinclair v. Ziff Davis/Mashable.com, in which Mashable convinced a court that it had the right to copy and monetize a photographer’s work without consent because the artist had posted the work to Instagram.
In lining up the horribles likely to result from the Sinclair decision, which has since been reversed, your author prognosticated that things could get very dire, and that the decision broadcast dangerous things to content poachers, such as that an artist’s ”right to control [their] work … goes up in smoke once” they post it to Instagram. Surely, though, only the vilest corporation would be so blatant and nefarious as to argue to a court that all artists using Instagram forfeit their ability to control the use of their work entirely, allowing it to be exploited for, say, advertising.
Flash forward a few ticks and Volvo, the Swedish car company known for their sensible family hoopties, a dull beige one of which was your author’s first automobile, has now made this argument to a federal judge. The company was caught unabashedly stealing content from a photographer and a model and exploiting it as key art in their advertising. Caught red-handed, they searched for a way to avoid compensating the talent responsible for the art that they found so compelling.
The facts of the case are disarmingly simple. In 2019, the photographer Jack Schroeder ventured out to explore the “super bloom” of wildflowers in the desert outside of Los Angeles. This was not an uncommon activity at the time. In fact, so many photographers and social media influencers ventured out and into the bloom for the photo ops that the parks department had to start limiting access to ensure that the ‘Gram Gang did not destroy the very thing they sought to capture.
Schroeder, out at the bloom, took a series of photographs of model Britni Sumida. In the pictures with Sumida, and on its own, is what appears to the author to be an unremarkable Volvo car, but, then again, the author is far from a gearhead.
Schroeder posted the images on Instagram, as one is wont to do. Volvo, now owned by Zhejiang Geely Holding Group Co., Ltd, a massive Chinese multinational corporation, slid into Schroeder’s comments and requested that he allow them to commercially use his work for free (Zhejiang Geely is worth billions of dollars), as in, gratis (Zhejiang Geely has 80,000 employees). The specific terms offered by Volvo were that Volvo could use Schroeder’s work in perpetuity for whatever it wanted with no creative input from Schroeder, and Schroeder would in exchange receive exactly nothing.
He, understandably, declined, but did offer to enter into a more equitable business relationship. Volvo ignored this offer, and, after waiting six months, published globally an Instagram video advertisement that consisted of little more than nine Schroeder works. To make matters worse, many of them also include Sumida’s image.
One would think that when Schroeder and Sumida’s lawyers brought this egregious rip to Volvo’s attention, cooler heads would prevail, common sense would be embraced, and Volvo would offer to compensate the artist and model for the obvious, knowing violation of their rights. But, one, as one so often is these days, would be wrong. Instead, Volvo rejected attempts at amicable resolution and chose instead to employ a litigation strategy so bizarre that it stands out even in the wacky and wild world of copyright.
Volvo filed a motion to dismiss the photographer and model’s complaint, arguing to the court with a face we have to assume was straight that it was free to use Schroeder’s photography and Sumida’s image in its global advertisement because a third party named Porch House Pictures that does not appear to be owned or operated by Schroeder or Sumida (though it wouldn’t matter if it was) posted the works at issue to Instagram and tagged Volvo’s Instagram account.
This argument is devoid of anything approaching merit. Volvo arguing that Porch House can somehow license Schroeder’s works is frivolous in the absence of any evidence that Schroder authorized Porch House to offer, let alone grant, a sublicense to Volvo. And there was no such evidence.
Even more absurd is the notion that Porch House somehow granted a sub-license to a global auto company to exploit Schroeder and Sumida’s content in its advertising by simply tagging the company in an Instagram post. Your author has drafted many, many copyright licenses, and if he could obviate the need for such labor by telling his clients to just tag their licensee, a lot of work could be avoided. But, of course, that is not how licensing law works.
For additional comedy points, Volvo then advised the court in its motion that Schroeder even today is following Volvo on Instagram, as if that somehow excuses the infringement. If someone ripped your author off to this degree, you can bet he would be following their socials like a hawk.
Not content to rest on its “tagging and following” bit, Volvo goes on to advance the now twice-rejected argument that artists who post on Instagram grant the entire world a license to exploit their work for free. Its position differs in some respects from the infringers in the recent Instagram cases, in that Volvo did not appear to use the Instagram API in connection with its copying of Schroeder and Sumida’s content. But, in any event, Volvo provides the court with no evidence that it obtained Sumida or Schroeder’s consent to exploit their content, as is required by Instagram’s terms of use. Probably because the evidence was all to the contrary — Volvo had been denied consent yet circulated its advertisement anyway.
In a very short period of time, we have went from shoddy clickbait sites attempting to exploit Instagram to publish photography without paying artists to a multinational car company doing the same in connection with its global advertising. This is one of the many reasons that the decisions rejecting infringers’ attempts to weaponize Instagram to attack artists’ rights were correctly decided, and why Volvo’s motion should be kicked to the curb.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.
Jordan Rothman is a partner of 
