[potatolicious]

> "They can show that picture to your friends and say "Look this guy who you know loves our pizza. Come try it out.""

They actually can't. There's a world of difference between using a photo to depict an event, and using a photo to endorse.

"Domino's is featuring $5 large pizzas, here's your friend Bob at Domino's last week!" is legal.

"Look at Bob who loves our pizza, come try it out!" is not, unless Bob has signed off on it. You've crossed the line into commercial endorsement, which is a civil suit waiting to happen.

Now, there could potentially be an argument that depicting Bob at Domino's next to a paid message by Domino's is implied endorsement - that's something Instagram will have to figure out. IANAL, though I have studied commercial vs. editorial usage of photography reasonably deeply.

Using someone to endorse a product is a legally non-trivial proposition. It's not as simple as "we can use your photo here".

[daltonlp]

I fail to see the difference between the two examples. They both imply endorsement.

In both cases, Dominoes has paid Instagram to promote its product. In both cases, Instagram has taken a photo of Bob (taken by Bob? Taken by a friend of Bob's?) And attached it to a marketing effort on behalf of Dominoes. In neither case does the photo's subject (Bob) or its author (Bob?) have a say over the photo's use.

[fluidcruft]

The difference is that one case is clearly explicit: when the ad says "Bob likes our pizza", Bob liking your pizza is an explicit endorsement. The other is more statement of fact: that Bob ate there. For all you know he could have hated it.

On the other hand, add the context of Facebook. What if Bob hit the like button in facebook? You could argue that hitting the button is an endorsement. Or perhaps if the ad is only displayed in a Facebook context where "like" is understood to mean pushing a button on a page, you could argue that the traditional meaning of "like" doesn't apply so it's not an endorsement.

[potatolicious]

Indeed, and that's the subtle (but significant) difference. I've noticed for example that in my Facebook feed it never says "Bob likes Pizza Hut", it says instead "Bob liked a page: Pizza Hut".

It certainly goes into a gray area - but something as explicitly as "Bob likes Domino's! You should get Domino's too!" is a legal minefield I doubt anyone would willingly wade into.

[davewiner]

Yeah they could put your picture on the Domino's box, saying "Internet users eat here!" and all your friends think "What a dork." Pretty embarrassing and they didn't have to say one word about who you are or what you actually said. They can use the picture because you said they could. And I am not a lawyer, and bet that you aren't either. :-)