‘Volvo’ Instagram Lawsuit Exposes Social Media Copyright Nuances

 The recent lawsuit against automaker Volvo over an Instagram story shines new light on the convoluted question of social media content licensing and rights, especially when it comes to sharing or reposting “public” content. The terms of use for social media platforms have long been seen as overbroad when it comes to granting the companies themselves rights to user-generated content. These newest cases highlight the risks for professional photographers, models, and the companies they interact with online. The rapidly-developing social media world is facing a slow-changing legal system, and cases like these are of vital importance and should be followed closely.

The suit, brought by a photographer and the model he photographed, accuse Volvo of copyright violation, unfair competition, false endorsement, and misappropriation of the model’s likeness. The post in question was an Instagram Story that Volvo posted, featuring photographs of the model posing with one of its cars, and subsequently including a link to Volvo’s website.

Copyright claims by photographers, many of whom post their work to social media, are nothing new. Targets of these suits have included everyone from Ariana Grande and Justin Bieber to Jennifer Lopez and the Kardashians -celebrities and influencers who have monetized their social media feeds and can make six figures per post for sponsored content. But for brands, whose social accounts and their own websites are a form of advertising, it can be less clear-cut, and they must be especially careful when navigating these issues.

Volvo, in a motion to dismiss the suits, claims that by posting the photos publicly, and by tagging the Volvo account in the posts, the images were subject to re-sharing, and a license was implied. Their motion also holds that the model has no claim regarding Volvo’s redistribution of the images, and asserts that the model agreed to be photographed with the car and have the images published, and thus brought any confusion on endorsement on herself.

Jeffrey Gluck, a lawyer for photographer Jack Schroeder and model Britni Sumida, repeated a warning many have voiced about the dire implications of assuming free use of publicly-posted content. “Volvo’s argument, that they can allegedly take and exploit ANY photo publicly posted on Instagram, is dangerous, chilling, and wrong,” Gluck said in a statement to The Hollywood Reporter. “The entire global creative community should be on high alert, and Instagram should speak up immediately. The creative rights and livelihoods of millions of people are now at stake.”

The convoluted nature of social media terms of use means embedding content can be a different story from merely reposting it. In April 2020, the U.S. District Court for the Southern District of New York ruled in Sinclair v. Ziff Davis LLC that the defendant, multimedia entertainment company Mashable, did not infringe on a photographer’s rights when it embedded a post from Instagram. The company had shared the content without securing permission from the photographer, but had used the platform’s API (application programming interface), which the terms of use allow users to use for embedding posts on websites. The court held that the photographer’s right to license their photo, and Instagram’s right as a licensee to sublicense the photo, were distinct from each other. Importantly, because the court determined that Mashable had, in fact, been granted a license by Instagram, it did not touch the question of whether or not embedding an image can be considered a copyright-infringing “display.”

In a case heard by a different judge from the very same district court, the question of embedding (in this instance a tweet) being a “display” that can infringe on copyrights resulted in a different conclusion. Goldman v. Breitbart News Network LLC et al. saw a settlement out of court after a widely-criticized decision for partial summary judgement in favor of the photographer, whose photo had been included in an embedded tweet without permission.

With so many pages of terms of use to read through for each social media platform, and the terms being subject to change at any time (Facebook is updating its terms of use effective October 1, 2020), it is unlikely this question will have a clear resolution. The social media giants will of course insulate themselves and maintain their license rights for content posted on their platform. But we live in social media world where sharing is increasingly crucial, where companies rely on tagging and branded hashtags for promotional events and advertising, and creatives face a “publish or perish” approach to staying relevant on the platforms. Lawsuits like these will lay the legal groundwork for generations to come, and should be carefully watched by anyone with a stake in social media content. Here’s hoping the law can keep up.

Legal Entertainment reached out to both an attorney for the plaintiff and Volvo USA, and has not received a response at the time of publishing. We will update this article if and when we receive a response.

source:forbes

Facebook threatens to block Australians from sharing news in battle over landmark media law

 

Facebook will block Australians from sharing news if a landmark plan to make digital platforms pay for news content becomes law, the digital giant has warned.

The sharing of personal content between family and friends will not be affected and neither will the sharing of news by Facebook users outside of Australia, the social network said.

The mandatory news code has been backed by all the major media companies including News Corp Australia, Nine Entertainment and Guardian Australia, as a way to offset the damage caused by the loss of advertising revenue to Facebook and Google.

“Assuming this draft code becomes law, we will reluctantly stop allowing publishers and people in Australia from sharing local and international news on Facebook and Instagram,” the managing director of Facebook Australia & New Zealand Will Easton said in a blog post on Tuesday.

“This is not our first choice – it is our last. But it is the only way to protect against an outcome that defies logic and will hurt, not help, the long-term vibrancy of Australia’s news and media sector.”

Treasurer Josh Frydenberg said the government would continue with the legislation and did not respond to “coercion or heavy-handed threats”.

The Australian Competition and Consumer Commission chair Rod Sims said Facebook’s threat was ill-timed and misconceived.

“The draft media bargaining code aims to ensure Australian news businesses, including independent, community and regional media, can get a seat at the table for fair negotiations with Facebook and Google,” Sims said.

“Facebook already pays some media for news content. The code simply aims to bring fairness and transparency to Facebook and Google’s relationships with Australian news media businesses.

“We note that according to the University of Canberra’s 2020 Digital News Report, 39% of Australians use Facebook for general news, and 49% use Facebook for news about COVID-19.

“As the ACCC and the Government work to finalise the draft legislation, we hope all parties will engage in constructive discussions.”

Tuesday’s statement marked the company’s first comment since Google also took an aggressive approach to the looming legislation, although the search giant has stopped short of saying it would block search functions in Australia.Advertisement

The director of the the Australia Institute’s Centre for Responsible Technology, Peter Lewis, said Facebook is prepared to remove trusted journalism from its site but will allow disinformation and conspiracy theories to flourish.

“As a big advertising company, Facebook would do well to realise its success is only as strong as its network of users,” Lewis said.

“Bullying their elected representatives seems a strange way to build long-term trust.

The announcement blindsided Australian media following a long silence from Facebook in Australia. Facebook chose to brief American journalists ahead of the release of the news about the ban, while ignoring Australian media.

Sources said the targeting of the US media indicated Facebook’s main concern was that the mandatory code set an “international precedent”.

Nine Entertainment, publisher of the Sydney Morning Herald and the Age, said Facebook’s “strange” response had demonstrated its use of its monopoly power “while failing to recognise the importance of reliable news content to balance the fake news that proliferates on their platform”.

“We are ready to engage and hope to come to a constructive outcome with Facebook which will work for both of us and importantly the Australian community,” a Nine spokeswoman said.

Facebook said the competition regulator “misunderstands the dynamics of the internet” and will damage the media companies it is trying to protect with the bargaining code which would see Google and Facebook sharing some of the revenue they get from advertising using news content.

“When crafting this new legislation, the commission overseeing the process ignored important facts, most critically the relationship between the news media and social media and which one benefits most from the other.”

Easton denied the ACCC’s claim that the digital giants make money from news, saying “the reverse is true” in the case of Facebook.

He said in the first five months of 2020 Facebook sent two billion clicks from Facebook’s News Feed back to Australian news websites “at no charge”, traffic that was worth an estimated $200m to Australian publishers.

In the incendiary post Facebook branded the scheme devised by the ACCC as one which allowed publishers to “charge us for as much content as they want at a price with no clear limits”. The statement had some support, including from billionaire tech mogul Mike Cannon-Brookes who said media would be the loser not Facebook.

In a separate post, the vice president of global news partnerships for Facebook, Campbell Brown, said the company’s commitment to journalism had not changed and listed the projects Facebook had launched globally.

“And we hope to once again count Australian news publishers among our partners in the future,” Brown said.

Brown said the company was “disappointed” by the outcome in Australia which did not produce regulation which helped the relationships between technology companies and news organisations but one which hindered it.

Facebook told users it was updating its terms of reference next month, apparently to include the ban on Australians sharing news. The new line in the terms is: “We also can remove or restrict access to your content, services or information if we determine that doing so is reasonably necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook”.Advertisement

The minister for communications Paul Fletcher said Facebook’s statement was a reminder that the tech giants had a history of making heavy-handed threats and the government remained committed to the mandatory code.

The commercial TV lobby group accused Facebook of bullying.

“What we’re seeing today is a global monopoly that will say and do anything to avoid making a fair payment for news content, Free TV Australia chief executive Bridget Fair said: “Australian Facebook users are being held to ransom as a tactic to intimidate the Australian Government into backing down on this issue.”

source:theguardian

New law for Dubai government entities to set up companies

 Sheikh Hamdan bin Mohammed bin Rashid Al Maktoum, Crown Prince of Dubai and Chairman of the Dubai Executive Council, said the continuous development of the emirate's legislative framework is crucial to the achievement of Dubai's strategic objectives. The enhancement of the legal framework is a vital element in enhancing the growth prospects of various sectors, he stressed.

"As part of implementing the directives of His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice-President and Prime Minister of the UAE and Ruler of Dubai, to accelerate economic development and promote investments, Dubai places high importance on creating an integrated legislative infrastructure that facilitates equal opportunities for public and private sectors. We are keen that the private sector plays a major role in shaping the future of the national economy and achieving sustainable development. A legislative framework that protects their interests is critical to their growth and success."

He added: "We do not want to be a competitor to the private sector, but rather seek to complement it. The partnership between the public and private sectors adds significant value to Dubai's sustainable development."

Sheikh Hamdan's comments came as he issued Executive Council Resolution No. (23) of 2020 on the terms, conditions and regulations governing the establishment of companies by Dubai Government entities. The resolution standardises procedures for establishing government-owned companies in line with international best practices. It seeks to encourage investments in various sectors and ensure strong governance at government-owned companies.
According to the resolution, a government entity is allowed to establish a company if its main activity falls within the objectives and responsibilities of the entity. It should also contribute to Dubai's sustainable development plans and offer products and services of strategic economic importance.

To establish a government-owned enterprise, the government entity must follow the standardised procedures outlined in the resolution. It should coordinate with Dubai's Department of Finance to prepare a feasibility study for the new enterprise and adhere to the articles of the UAE Federal Law No (2) of 2015 on Commercial Companies. Dubai's Department of Finance, in coordination with the General Secretariat of The Executive Council, will review the company's feasibility study, conduct competitor analysis and submit its recommendations to the Chairman of The Executive Council or the First Deputy Chairman of The Executive Council for approval.

The newly established company must uphold the principles of fair competition. It will not enjoy any advantage or receive any financial support from the government. Government-owned companies should pay all taxes, fees, charges and tariffs specified by federal and local legislations.

All government-owned companies under the purview of this resolution must abide by its provisions within two years of the date of its activation. The Director General of Dubai's Department of Finance will issue all the bylaws required to implement the resolution.