A behind-the-scenes video of a Northern California high school football team staging a fun-filled photo shoot at their local In-N-Out quickly racked up nearly a million views on Instagram.
Brentwood-based photographer Glenn Silva was thrilled to see that the photos he was hired to take at the Lincoln High School football players’ favorite hangout in their Sacramento suburb were resonating with a wide audience online.
In-N-Out’s trademark team was less enthused.
Last week, representatives for the fast-food chain emailed Silva and the team demanding that all content from the shoot be taken down. The photos showed the Lincoln football players posing behind the counter and drive-thru window dressed in their football uniforms and helmets.
“In-N-Out Burger takes the protection of its brand, trademarks, and trade dress very seriously,” the Sept. 23 email, reviewed by The Times, reads. “The unauthorized use of our restaurant premises, signage, logos, or any other proprietary elements in your content may constitute a violation of our intellectual property rights.”
UCLA law professor Mark McKenna and UC Berkeley law expert Vincent Joralemon independently said they were doubtful the fast-food chain would win a trademark case against the high school team if they were to take it to court. However, they both noted that In-N-Out’s response was not surprising given the company’s record of fiercely protecting its trademark.
In-N-Out did not respond to The Times’ request for comment Wednesday. The Lincoln High School athletic director referred questions to the Western Placer Unified School District, which did not immediately respond to a request for comment.
Team mom and booster club member Chelsey Vanderschrier said she came up with the idea for the shoot after seeing a trend on social media of other high school teams staging creative media day photos at fast-food restaurants.
“That kind of birthed in me the idea of how special it would be to get some pictures of our team at our local In-N-Out because it’s such a special place for them,” she said. “They just love celebrating there on Friday nights after their game.”
Silva said he was shocked to receive the email from In-N-Out corporate as he had obtained permission to carry out the photo shoot from the manager of the local In-N-Out in Lincoln. The manager had even let the team enter the restaurant an hour before opening. Silva was hired by the team booster club to take the photos, which were intended to be enjoyed by the players and their family.
He explained to the restaurant’s corporate lawyer that he believed he had received the necessary approval and asked if corporate could grant a one-time exception to keep the photos online given how much the eatery and the experience means to the teens.
Silva offered to modify captions, remove tags or take any other steps that could preserve the special moment for the athletes, noting that the photos were not intended as part of a broader social media campaign.
“What began as a fun photo session for a small-town high school football team unexpectedly became something that thousands of people connected with,” he wrote in an email to the trademark team. “For the players and their families, however, it is still fundamentally what it was intended to be — a record of the kids, their teammates and a tradition that is part of their high school years.”
In the email exchange, a company representative said that anyone wishing to carry out commercial or promotional photography at an In-N-Out location must obtain “express written consent” from the company’s corporate office in advance — and that store managers are not authorized to provide this permission.
A lawyer for the fast-food chain wrote in a Sept. 24 email to Silva that he had passed along the request for retroactive approval, but the company declined it.
“We understand this is not the answer you were hoping for, and we want you to know that your request was given careful consideration,” the attorney wrote. “Please confirm once the content has been taken down.”
Silva and the team, which had shared the photos and videos as collaborative posts on Instagram, complied with the demand and took down the content that afternoon.
In-N-Out has an extensive record of defending its trademark and has frequently taken or threatened legal action against entities accused of copying its menu or branding.
For example, the company sued a Utah burger joint in 2007 for using trademarked menu names and a similar interior color scheme, sued Puma in 2019 over a pair of sneakers that mimicked employee apparel and sent a cease-and-desist letter in 2024 to a San Diego sports bar that offered “animal-style” fries.
McKenna, co-director of the UCLA Institute for Technology Law and Policy, said that the high school photo shoot doesn’t strike him as an especially strong trademark legal claim.
“It’s not like a business that’s running its own Instagram account where people viewing the thing might think ‘Oh, this is a collaboration between In-N-Out and something else,’” he said. “It’s a high school football team; they’re not really commercial users.”
Joralemon, senior fellow at UC Berkeley School of Law, noted that when In-N-Out does go to court in a larger trademark case, it is beneficial for the company to be able to point to a strong track record of defending its brand.
“If [a court] can get evidence to say, ‘Hey, you just let all these high schools use this, it almost looks like you’re doing a co-sponsorship with these high schools,’ then that would point to [In-N-Out] being a relatively weak brand, which might hurt them in the future,” he said.
But, when it comes to the specific case of demanding the Lincoln Fighting Zebras to take down team photos at their beloved drive-through, the public response could be net negative for the brand, he continued.
“It’s always a calculation to say what’s the PR cost going to be,” he said. “Here, I don’t know if In-N-Out made the right decision, because it it doesn’t really diminish [the brand] that much with just a high school team doing a photo shoot.”
Vanderschrier said football team members were happy to comply with In-N-Out’s demands as they did not want any further legal problems, but were nonetheless disappointed to delete the content after it received such a positive reception online.
“It’s a bummer because the photos were so unique and it was really cool to see them go viral,” she said. “The attention that they were getting is sort of exciting because that’s not something that happens to us very often.”
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