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Texas Family 'Sues Creative Commons'
An anonymous reader writes "A Texas family has sued Creative Commons after their teenaged daughter's photo was used in an ad campaign for Virgin Mobile Australia. The photo had been taken by the girl's youth counselor, who put it on Flickr, and chose a CC Attribution license, which allows for commercial use. Virgin did, in fact, attribute the photo to the photographer, fulfilling the terms of the license, but the family is still suing Virgin Mobile Australia and Creative Commons. 'The lawsuit, filed in Dallas late yesterday, names Virgin Mobile USA LLC, its Australian counterpart, and Creative Commons Corp, a Massachusetts nonprofit that licenses sharing of Flickr photos, as defendants. The family accused the companies of libel and invasion of Chang's privacy. The suit seeks unspecified damages for Chang and the photographer, Justin Ho-Wee Wong.'"
Why sue Creative Commons? Did they have anything to do with the picture in question, other then being the license used to display the picture with?
Shouldn't the girl in question have had some form of licence agreement with the photographer in the first instance to prevent this sort of thing? The photographer has copyright of the image, he has issued it under a licence and the company has fully complied with the licence.
Have a look at soylentnews.org for a different view
Pix or it didn't happen.
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for not acquiring a model release before putting his image out for commercial use. Both the girl and Virgin could sue the photographer.
Without a model release signed by the girl (and her parents if under 18) the counselor will lose the case. Use of someone's image in a commercial context requires a model release from any identifiable people in the image.
Why is that some people get greedy and ignore even the common sense which prevails a court room, let alone common sense in the real world. It would be like suing me for saying: "Here's my really crappy license agreement (furthermore know as the RCLA), I don't know about RCLA's quality, but if you can use it as a standard footer... but the license won't really do anything" Dumb. Seriously, I'm struck by that moment in Idiocracy where the defense counsellor yells, "And he broke my window". Dumb dumb dumb dumb.
Virgin is in the wrong here, and CC has nothing to do with it, obviously. The CC license only releases certain provisions of copyright, but doesn't touch the kind of legal restrictions that require people's consent to use their image.
And Creative Commons the organization doesn't license anything, which the article mistakes. They provide license texts that other people use of their own accord. In order to license anything, you need to own the copyright first... and CC obviously doesn't own the copyrights to all material released under Creative Commons licenses.
-3Suns
~~~~
The Revolution will be Slashdotted
And btw, when you are on a public setting, photography is allowed. So the guy who took the picture, owes nothing to the family, and it's his prerogative to license the picture any way he wants to.
If I understand it right (I glanced over the article itself [Yes, I blasphemize!]), but it looks like the photographer chose to do this on his own without asking the family. He took a picture at a summer camp, and used it later, they say they had nothing to do with agreeing to it.
Yes, but the law says that when you are on a public setting, you CAN be photographed, and the photographer determines the license terms. So the photographer decided to release his picture in CC-BY, which is his prerogative and right to do so. The girl and family can't do anything about it. She should have asked right there to not take her picture, or to not publish it. From the moment she didn't express any disconcern, then she has NO SAY in what happened afterwards.
And now the ironic thing is that this lawsuit is bringing more publicity to the family and the photo than if they had sat back and done nothing. I.e. the "Streisand effect".
- Move "Sig". For great justice!
2. without the release the photographer HAS NO RIGHT to release her image for commercial purposes
3. She didn't license the photo, the photographer did it, why the fuck should she need to understand a license when she doesn't know it's being applied to her image?
imagine if you can, suddenly seeing your image on tv and in newspapers when you didn't give consent for it to be used? I'd sue the fucking pants off them as well.
If you mod me down, I will become more powerful than you can imagine....
Actually, it doesn't sound like he was posting the picture for commercial (or at least for profit use). He just posted it on the flickr website, and then it was picked up randomly by virgin without paying for it (which according to CC they can do) and also without obtaining a model release (which may not be covered by the CC license).
That's not quite true. Photography is allowed, but commercial use of those photos is not, unless you have a model release or it falls under one of the exceptions.
You are right. This is a model release case. The photographer is liable.
"What did you lose (in monetary terms) by this picture being used?"
Like other cell phone companies where lining up to use the picture... now they are backing off.
I'd say damages are $1.00 for each random person off the street who can name the pictured individual. (Take 10,000 samples if you want.)
This issue is a bit more complicated than you think.
Yes, she does. She can say that she doesn't want the photo used commercially. She can't stop the photographer from doing anything else with it though, including publishing it on the net.
It sounds like the company, Creative Commons Corp is the one really at fault. They should have confirmed that the photographer had a model release.
Huh? So I can take a picture of you in public, and put in block letters "Butt-fucking children is fun" over it and post it?
are you really so stupid as to suggest it's a minor's responsibility to understand contract law ? i'm pretty sure anywhere you go you'll find photographing kids and giving away their photo's on the interwebs isn't legal.
If you mod me down, I will become more powerful than you can imagine....
It's like suing FedEx because some thief stole your credit card and used it to buy something online, and FedEx delivered the package.
Creative Commons didn't do jack squat to her. What's worse, neither Virgin, nor the photographer, nor Flickr have any sort of contract with Creative Commons. Creative Commons just wrote some nice copyright licenses; if they hadn't written them, the photographer could just as well have posted them under another liberal license, or made them public domain. Hell, even Flickr has more guilt here than Creative Commons, since the photographer probably never would've heard of the CC licenses if Flickr didn't have handy radio buttons to choose among them.
If the photographer didn't have permission from her to redistribute the photo under those terms, then that's the fault of the photographer and the girl for not discussing it — i.e. the photographer should've asked "Hey, can I post this to Flickr?" and, if she didn't know, mention that he uses a CC license.
Worse, Virgin is innocent in all this as well. They used the photo in a good faith assumption that the permissions granted to them by the photographer were his to give. They should immediately pull any advertising with her photo, sure, but they shouldn't be liable for damages if the photo is pulled immediately.
Range Voting: preference intensity matters
It's pretty clear from the article that the photographer chose the CC license, and the company fulfilled its terms. However, I'm pretty sure that the CC license doesn't actually affect the primary claim of the lawsuit, which is that the girl's privacy was broken and her reputation smeared. The CC license constitutes permission from the photographer to use the photograph for commercial purposes, but doesn't constitute permission from the subject of the photograph to have the image so used. If the picture had been, say, a nice picture of a mountain lake with no people in it, then nobody would care. The lake wouldn't care that its reputation might be damaged. But when there are people in the photo, then you need consent from each one before publishing it, particularly if you're making money off doing so. That's pretty standard operating practice.
Basically, it looks to me like Virgin Australia screwed the pooch on this one.
Oh, and it's unclear to me whether the counselor is 1) being sued; 2) suing; or 3) not currently involved directly in litigation.
Creative Commons in not a company, it's the project that wrote the license. Virgin is the company. And I agree, it requires a model release.
I don't think so. They used what basically amounted to a stock photo according to its license. Were they supposed to personally vet all parties involved? Do you personally vet everyone in stock photos you use? Or audit all the software on your machine to ensure that the people who licensed it to you really had permission to do so?
At some point, you have to be able to trust that your sources are legitimately representing themselves. IANAL, but this seems like one of those "good faith" dealings, and Virgin didn't have any reason to think that the photographer was illegally offering his work. They obeyed their license with him, and it was his job to make sure he was allowed to offer it.
Dewey, what part of this looks like authorities should be involved?
Nope. Indeed, model release is needed.
Okay, to start off, when I was taking Senior Pictures, I remember getting back the demo prints and they all had a (c) DO NOT COPY stamped on the bottom. I found this funny since it was a picture of me, but I understand that the photographer, not the photographed, owns the rights to the photo. Now another thing they did, if I remember correctly, is have me sign a release allowing my image to be used by them however they see fit (whether on a website, company brochure, etc). If the picture in question was taken somewhere professional, the girl may very well have had to sign something similar. IANAL, but wouldn't that be equivalent to a model release? Then the photographer, with his copyright power releases the photograph as CC and Virgin takes the picture and uses it. Once again, it all depends on the context the photo was in (whether it was an amateur Flickr scrapbook shot or professional work where releases would be signed by default).
Then how exactly does the paparazzi exist. Are they considered a news organization, and thus exempt from requiring waivers?
CC is an explicit license regarding usability of material given by owner of the image.
CC is a form of license, not an "insitution". It doesn't own anything. When one signs picture using CC-by license, he is giving consent to public to use it in certain manner.
"Without a model release signed by the girl (and her parents if under 18) the counselor will lose the case. Use of someone's image in a commercial context requires a model release from any identifiable people in the image."
Well, in the US, but that isn't where the the ads were made and displayed. Keep in mind that the law is complex. Talent releases are based on the nebulous "invasion of privacy" principle, which in the US doesn't apply in the case of photos you take outside of the US since the US right to privacy doesn't extend to foreign nationals photographed in their home country. Similar exceptions may apply in reverse, as this photo was used in an ad in **Australia** not the the US.
You can be photographed in a public place, but your image cannot be used commercially without your permission (with some minor exceptions).
E.g., I can stand outside your house on the street and take a photo of you when you walk your dog in the morning, holding a cup of coffee, but I can't take that same photo and use it in the promotional materials for "Kadin's Pretty Good Coffee Co." Although you can't stop me from taking the picture, you still have some control over the use of your image commercially, particularly to support or endorse a product.
So the photographer was probably OK to take the picture. I'm not really sure if he was OK to put it on the Internet, if he didn't have the parents' permission (I think that's sort of a legal grey area at the moment). He was probably not okay to license it under the CC license, although he may be able to argue successfully that simply putting the photo under the Attribution license doesn't imply that it can be used commercially, simply that commercial use isn't prohibited by him (there's a fine but significant difference there). I suspect Virgin is going to be liable for something, because they took the photo, assumed that the CC license implied that a model release existed, and ran the photo, when in fact they only had the photographer's permission, but not the model's.
In a photo that shows a clearly identifiable person, there are two intellectual property issues. The first is regarding the actual copyright on the photograph. That is held by the photographer and it's what the CC license releases for others to use. The second piece of IP is the model/subject's image, and that is controlled by the subject/model unless they sign a model release and turn over control to the photographer.
Most stock repositories won't accept photos of people without a model release, for exactly this reason. However, Flickr doesn't care, and Virgin's PR people blew it when they treated Flickr like a stock-photo repository.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
Since they're the ones using it commercially, and the photographer had no commercial intentions. (which would be separate from copyrights that creative commons allow.)
There's no irony there.
"Live as if you'll die tomorrow." Ridiculous. You could die later today.
I'm not so sure about that. If the CC-license is anything like the GPL or BSD licenses, they claim that the issuer is not responsible for infringements of other rights and that it is up to the licensee to do determine if use of the material would be legal based on their local laws. Patents are the most common issue, but I don't see why model release would be any different.
There is a difference between saying "I copyleft my rights under copyright, including those restricting commercial usage of my work." and saying "I assert that the following content is commercial usable for all purposes." The former statement seems more logical, especially considering that CC-licenses deal with copyright.
In such a case, it is Virgin or their contractors that are at fault.
Sure, in this case, the subject actually knew the photographer and consented in some sense to the photo being taken, but how would Virgin know that by merely surfing Flickr? This is Flickr, not stockphotos.com. It's not reasonable to assume that releases have been signed for every photo on Flickr.
There's a joke in there somewhere...
People sue Richard Stallman for inventing the GPL. Terms of the suit include requiring Mr. Stallman to shave his beard.
Have you EVER seen a paparazzi photo being used this way in a commercial? No? Oh...
Suing the people who made the effing license? I hope they get stomped in court like the insects they are.
The flickr thread referenced in the article has some pretty good info.
The CC seems to have a FAQ question on this issue. It sounds like Virgin was supposed to verify no matter what. It doesn't make clear though whether or not the photographer is supposed to get this sort of thing cleared up before putting it under CC though.
Seems like the picture was taken in a (restaurant?) parking lot where their group was giving car washes. Certainly in public but I wonder if it's in public enough for commercial use?
I truely hope that after this family has done this, that this girls future as a possible model is ruined. I know I would stay very clear of people with a history like this if I was looking for someone to shoot.
Free (good) publicity for someone that is otherwise unknown and currently would have had almost no chance of any type of modeling career, this kind of thing could have really set her up to jump start a career, but no she has to go and get greedy and hopefully ruins her chances of ever making it.
I think its ludacris that the Creative Commons is being suid, and while Im sure that nothing will come of it, it just goes to show you that these people really are just after money and nothing else.
http://interserver.net/
The issue is NOT about copyright. The photographer is perfectly able to sell a six foot framed picture of the picture of the girl, to which he own the copyright, as an individual artwork.
The issue is about the use of the girl to endorse a product, which requires a model release specifically granting permission for it to be used in that way.
Again, its not about copyright. So CC having anything to do with it is non sequitur.
The girl can really only sue Virgin, who are the ones who paired her image to endorse their ad campaign. Virgin may then on-sue the photographer if he falsely made any assurances about there being a model release - however as standard practice, Virgin really shoudl have had the model release in hand before publication.
"dump your pen friend" "free text virgin to virgin".
;).
Uh she's a young female teen.
I don't see how it's derogatory that she is being associated with being a virgin. "A lot of her church friends saw it".
Derogatory in this context would be "free text slut to slut".
As for "dump your pen friend", as far as I know, teens nowadays don't have pen friends - they use IM and SMS/"text", so that's true too.
She should be compensated though, not for being insulted, but for whatever the usual photo model gets for that sort of thing.
Now if someone put an image of a 40 year old slashdotter and used that same taglines it would be naughtier, maybe even funnier
Great new pet name for genitalia.
OSGGFG - Open Source Gamers Guide to Free Games
At some point, you have to be able to trust that your sources are legitimately representing themselves. IANAL, but this seems like one of those "good faith" dealings, and Virgin didn't have any reason to think that the photographer was illegally offering his work. They obeyed their license with him, and it was his job to make sure he was allowed to offer it. I think that the argument the photographer could make -- and a pretty good one IMO -- is that simply by putting up the photo under the BY-SA license (or whatever license he chose that wasn't one of the 'NC' ones), he *did not* make any representations that it was OK to use commercially. He may have waived his own copyright, and said that he had no problem with it being used commercially, but he didn't say that the image was clear of other IP claims.
That's a pretty crucial difference: "I don't prohibit you from using this commercially," is a very different statement from "this image is OK to use commercially." Only in the latter case is the photographer making any representations about the suitability of the photo for a particular use. In the former, he's just saying 'I don't have a problem with commercial use,' the implication being that someone else might, and it's on you to check.
In a stock photo repository, you are told specifically by the stock company "these images are all OK to be used commercially." (Usually in very explicit terms, somewhere in the small print, and the better ones will usually indemnify you from any problems like this, which is why companies use them.) But I don't think Flickr is saying that, and it's a mistake to assume that just because a photo is under a license that doesn't prohibit commercial use, that it's implied.
Basically, although my initial response was to blame the photographer, on more consideration I think the majority of the blame lies with Virgin, for treating Flickr like a stock-photo gallery, when in reality it's anything but. Flickr has a lot of images on which the photographers have put very permissive licenses on their own copyrights, but that doesn't necessarily imply anything else.
I could see enough room though for a good attorney to argue the case either way. If this actually goes to trial it could be pretty interesting, since I suspect Virgin probably isn't the only company using Flickr as a source for stock photography.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
If anything, Creative Commons actually helped her, by providing simplified licensing options, with clear explanations. If she didn't get it, or if her family disagreed with what she did, then that's a matter for them.
;)
More importantly... I read this as "...Virgin daughter..." on the second reading. My question obviously would have been, "do we know she's a virgin, and if so, how?" Strangely, that question still interests me
So Pix it is. Today I read the Dallas Morning News (print) which had a picture. That same picture is also on Flickr. Note the HEAVY editing; 1) The white sleeve is to the left instead of right as in the original picture. 2) a brick wall has been added 3) a caption has been added "Dump Your Pen Friend".
/. discussion.
From DMN. "Alison's feelings are on view at Flickr.com, where she kicked off a three-month discussion of privacy and copyright law with a post below a picture of the ad that reads, "Hey that's me! No joke. I think I'm being insulted.""
Your obligatory pix is below.
http://www.flickr.com/photos/sesh00/515961023/
Then the Dallas Morning News article, sans pix. And registration is probably required (don't you hate it?). There are some good privacy quotes in this article that haven't yet been covered in this
http://www.dallasnews.com/sharedcontent/dws/bus/ptech/stories/DN-suevirgin_21bus.ART.State.Edition1.35bdb09.html
Cheers, Jim
I dont know what kind identity laws are on Australia but on Finland you only need permission from model to use your picture. And it dont even need to be on paper. But of course it would be much easier to proof on court that model gave own permission to use photo if it's on paper.
And here, photographer 'needs' permission if picture has 1-3 recognisable faces. It's just good custom to ask from them. Because law allows taking pictures from subjects if they dont get connected something what they dont like.
Like if photographer takes picture from a man standing next to gay parade, it is easy to understand that man is a gay. (gay as homosexual, not happy in this example). And then there is more things about it how to show person in it or how journalist writes it.
And here i can go and take normal street photos from normal people without permission and sell those pictures to news or for any other commercial places, because they were on public place and not doing something what would insult their identity. But if i take those pictures from place what is not public (needs exm. invitation to get inside building, a hospital, a police deparment or inside a store), then i need permission to photograph in there and permission from subject. And permission dont need to be on paper, it can be just sayed loud.
But like i told, i dont know Australian law and if there is big differences on this kind things.
But i would like to see those pictures if there is something bad. Like if that girl is on commercial from surgery clinic what sells breast implants or somekind face surgery.
I just think that this is something where family wants easy money....
I just wanted to say kudos for being so massively, completely wrong, yet barging in and spouting off ignorant comments regardless. Kudos!
My favorite part was when you said it was the family's fault for licensing under CC when if you'd so much as read the summary you'd know that wasn't true. Actually, no, my favorite part was when you talked about laws as though you know them, when really, you know a few 'public property' legal rules-of-thumb and proceeded to act like you're actually knowledgeable in this area. Which you are not.
Please never post again. You're making the world a worse place with this garbage.
1. Take a photo and release it under CC with attribution
2. Wait till the attribution leads you hear about someone using it
3. Sue
4. Profit!
Boffoonery - downloadable Comedy Benefit for Bletchley Park
The Sydney Morning Herald, who have put a copy of the photo on their website
The manufacturer of the camera that took the picture. Didn't they know that there was the potential for this when they made it?
Did this family hire Steve Dallas as their lawyer or something?
can't believe some of the fucking retards on this site.
but it doesn't surprise me. long gone are the days when americans would earn an honest living working in a steel plant, building cares, mining or in my case producing adult video entertainment. Nowadays everybody wants to sue and get rich very quickly. Is it any wonder our currency keep losing its value in the world?
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Considering the photographer had no right to state that the image could be used in such a manner in the first place, the Licensee is not at fault.
It would be as if I took the Linux kernel source, put it on a website and said it was BSD licensed. If a company then took the source and used it with the terms set by the BSD license, they should not be ultimately culpable, since I had no right to state what terms the source could be used.
The photographer was wrong to use a license that allowed commercial usage of a photo he had no right to state could be used commercially.
The first thing their lawyer is going to do is file a motion to dismiss for failure to state a claim -- or whatever the equivalent is in Texas; I'm not sure if Texas uses the FRCP rules or not, but an equivalent rule should be present. Creative Commons can get their part in this case removed easily since they had absolutely nothing to do with the alleged wrong acts.
Now the photographer on the other hand may have a more difficult fight if the photographer didn't get a model release, and Virgin may be in trouble for not doing due diligence on that -- I don't know the rules of this at all, so I don't know how much trouble Virgin's in for.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
... youth counselor instead, who put the photo into Flickr and chose a CC licence for it?
And in addition, perhaps, Flickr itself (although I am not sure about that)?
Please note, IANAL.
Sueing Creative Commons here looks like sueing the publisher of a law textbook because "my case in court did not work like the example in your book"...
Walter.
What a weird country you have.
An overlapping issue went to the Canadian Supreme Court in Aubry v. Éditions Vice-Versa inc. The Court ruled that publishing a photo of someone without the person's permission is a violation of the person's privacy, unless the person is in the public interest or at such an event, meaning anyone that was incidental to a photograph (e.g. as part of a crowd) cannot claim these rights. This is based on the Quebec Charter of Human Rights and Freedoms, and so only applies in Quebec, and according to the Wikipedia article, doesn't apply anywhere else in North America, although people's comments about a model release seem to contradict this. Also, according to Amnesty International (via the Wikipedia article on Bill of rights), "Australia is the only western country without a constitutional or legislative bill of rights." IANAL.
So when when I say "you are right" to the poster above, that's not good enough for you?
Go fuck yourself.
Nope, not true. I've been interviewed on camera for news stories and have never been asked to sign any kind of release for the use of my image.
If you are voluntarily talking to a TV news crew with cameras running there may be implied consent with respect to a model release. A "contract" does not have to be signed to be valid, performance of terms can be just as good as a signature depending on the circumstances.
She was a minor, and Virgin shouldn't be using photos of people with derogatory slogans in advertising campaigns. Anyone with a brain could see that. If Virgin had used a stock modelling agency, would have never been an issue. Hope she sues the crap out of them.
> Note the HEAVY editing; 1) The white sleeve is to the left instead of right as in the original picture.
> 2) a brick wall has been added 3) a caption has been added "Dump Your Pen Friend".
There isn't heavy editing.
1) The image was reversed and cropped to show just the girl.
2) The brick wall was already present behind the girl.
3) Yes, a caption was added.
I don't think it counts as "heavy editing" if I can do it in 2 minutes with almost any basic image editing program.
Flipping and cropping is heavy editing?
In many other countries such a lawsuit would not have the slightest chance of success and nobody would try it.
On the other hand, there would be a chance to sue the person who took the picture and made it publicly available (under whatever license) without the written consent of the person depicted, or a parent of the person depicted if the person is underage.
This has nothing to do with licenses or copyright and everything with the (possible) violation of personal rights by publishing the picture without a legally binding permission.
At least in countries with a decent legal system it would.
This is utterly ridiculous, the only person they should be suing is the photographer.
It was him who took the photo, and him who chose to distribute it under the creative commons licence. If he did this without the knowledge or permission of the subject, then they might have a case.
On the other hand, their daughter now has her 15 minutes of fame, and might even be able to model for other work.
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- Advertisers need to think twice before using photos from 'public' sources.
- Flikr and similar sites, plus Creative Commons, need to think about how the various sharing options are presented and whether the implications are obvious.
- Photographers need to be more careful about where they place their images.
- Everyone needs to be a little more aware when they are having their photo taken and shared.
It's a little sad that maybe some of the innocence is lost from taking a simple snapshot but in this case the Genie is well and truly out of the bottle.This article states that it's an undisclosed amount, but according to The Dallas Morning News (the paper I get each morning) the amount if for 10 Million dollars to cover pain, suffering, emotional torment, yada yada yada... Apparently the girl is going to be scarred for life regarding an Ad that ran on the other side of the planet.
The article in the paper is pretty long, and doesn't point out which license the image was under, so I am glad to see this come to light. Thank you Slashdot.
The Creative Commons license covers copyright permission. So far as I know, it does, and does not intend to, cover the privacy issues. Unless the photographer has a release signed by the parents (because, being under 18, the kid can't sign it herself), he's got a serious problem. And in the end, so does the publisher, whoever that might be (probably the ad agency), becaues they have a responsibility to check on whether or not there is a signed, legal release. How much of that liability devolves on the client and others depends on exactly whose laws apply to the situation.
The CC explicitly doesn't make any representations about rights you don't own. If you read the source you'll see:
This is actually explained in the FAQ
-- Sorry, I can't think of anything funny to say here.
This lawsuit is simply a way to negociate to be paid by Virgin ... which is fair enough.
Imagine your picture was being used in a huge advertising campaign. You'd probably want to be paid for it right?
That's what this is about, and Virgin will most likely agree (who needs negative publicity???)
I am not a lawyer, and nothing here should be seen to constitute legal advice. You use this information at your own risk.
This has been already examined as a legal case study (about half-way down the page). Its conclusion is that Virgin was wrong but will probably get away with it because the photographic subjects were shot outside of Australia.
Blog
And this involves Creative Commons itself, how?
I don't agree that Virgin should be held responsible here, but at least there's an argument there. There's really no argument for bringing Creative Commons into this.
Don't thank God, thank a doctor!
There is something I don't understand here. Lets suppose that the photographer had the right to license that image under creative commons, does that really mean people can do whatever they want with that photo? I mean, if I take a photo of myself, put in under a CC license, does that then mean someone can write "This is a picture of a child molester" under it and not be subject for liable? I think that is the key issue here, whether or not they had the right to use the photo per se, they [Virgin] had no right to use it in a way that could be reasonably foreseen to cause stress and harm to the person in the photo. Perhaps the case against CC is that it does not provide reasonable exclusions for just such a scenario.
It is a fairly common Asian belief that phtographing a person steals that person's soul. Being Asian, I don't buy that for a minute, because, well because - but some in my family do.
Am I the only one finding it strange that the very first comment on this flickr page is from the girl herself?
--insert masturbation joke here--
I see even classic Slashdot is now pretty much unusable on dial up anymore.
There are actually two things on the article that pertain to the reason WHY they sued, and it makes it rather confusing. At the one hand, they say:
"A Texas family has sued Australia's Virgin Mobile phone company, claiming it caused their teenage daughter grief and humiliation by plastering her photo on billboards and website advertisements without consent."
So, here you've got the first reason. Yeah, I know; "grief and humiliation"...heh. Poor thing! Probably traumatised and what not. Let's all thinkofthechildren! Surely, trying to get money out of it has nothing to do with it.
Well, anyway: 'without consent'... Well, if it WAS under the CC (att), it wouldn't NEED any extra consent, because you already give consent to use it in the manner described in the licence. If she DIDN'T give consent, then it's clearly the photographers' fault who put an unwarranted CC licence on it. So why isn't he being sued? Worse, why is HE one of the guys suing? It doesn't make any sense.
But then we read:
"The family of Alison Chang says Virgin Mobile grabbed the picture from Flickr, Yahoo Inc's popular photo-sharing website, and failed to credit the photographer by name."
So...wait, they're not denying anymore that it was CC licenced? Now they argue they (virgin) didn't follow the rules of the CC licence, and THAT'S why they sued? Well, obviously, if they didn't attribute where they should (according to that licence), virgin is in the wrong...but then it doesn't make any sense to claim there was no consent for the licence in the first place. Is their gripe with the fact it didn't mention the name and thus adher to the licence, or is it because she didn't give prermission.
Both argumentations deal with something else and pertain to different people. And in both cases, it's stupid to sue Crerative Commons itself. THEY have nothing to do with this; they just offer you the ability to use a standardised (more free) licence.
--- "To pee or not to pee, that is the question." ---
my first thought was that suing a (suite of) contracts :-|
is like declaring war on a tactic: so silly no one would
ever do it
And the 2nd is the photographer saying "Do you think Virgin will give me stuff?"
Yeah, that's not a cash grab, and I'm the pope.
"but doesn't touch the kind of legal restrictions that require people's consent to use their image."
If you consent that other people can use your pick as long as they give attribution (as with thye CC (attr), then you already GAVE that consent to use their image.
The only real case I see, is where the law says a minor can't give consent to such a thing (which, depending on the age, in most countries is the case). Not, however, that, with the same reasoning, all EULA's (where minors would have klicked on (agreed to) are unvalid too, in that case.
But all in all, let's be honest here (instead of legalistic): if someone (including a 16 year old) is giving permission to use their pick, they shouldn't complain if people do. If she didn't want a text or other change on her picture, she shouldn't have chosen a licence where derivative works are allowed. (You have a non-deriv CC, after all).
Of course, some countries still have unalienable rights (for the artist). In France, for instance, a model could prohibit the use of her pic when it would go against her integrity, even if she waved all her copy&sue rights away. (For instance, when a racist organistion would have used her pic, even when they payed her/had her copyright). On itself, it wholy depends on those laws, however, and it has nothing to do with the CC - nor, necessarily, with virgin.
In TFA thet actually say two different things. One, that she didn't give consent to the CC, two, that virgin didn't attribute it, as required. Those two things seem a bit contradictory, and the party they *should* be suing depends on it.
--- "To pee or not to pee, that is the question." ---
The comments below the image IMHO clearly show that she had no clue about what Creative Commons is, nor that the photographer put that image under CC. Thus it's very likely that he didn't have her permission to do so, therefore it's IMHO clearly the photographer's fault.
The Tao of math: The numbers you can count are not the real numbers.
There's been many people who've found themselves in this ad campaign because someone else chose an invalid CC license. Probably the best known is Molly Holzschlag.
Do note however that any "grief and humiliation" should be pretty limited; those 'billboards' (bus shelters was all I could find evidence off) only appeared in Australia, never in Texas.
I'm not sure it's that simple. Filmstars can't use the privacy defense when a picture is taken of them, because they've made public figures of themselves. In a way, they waved their privacy. When you put your picture on flickr (a public place) under the CC (to use by the public, thus) you've actually waived your privacy away too. You can't go public and then make a claim on your privacy.
(This was the same argument a court used when upholding a complaint of the *IAA towards a guy who used P2P for d/l copyrighted material. He had argued they (illegaly) invaded his privacy. the court answered that when using a P2P system, you're opening to the public, so that part of your computer doesn't have any privacy-law-protection anymore).
I think in principle, this is sound. You can't go public with a picture and at the same time, claim your privacy is at stake. By going public, you waved your privacy-rights on it yourself.
As for the smeared reputation or defamation...that could still stick, indeed. It depends on the country (and its laws), really, and has nothing to do with the licence. I mean, in some countries, even when an adult model signed 100 contracts waving all her rights away and would agree to being smeared and what not, one STILL could sue (and win) because national law allows it and supercedes contractual rules and agreements.
But I guess, in an anglo-saxon country, she would have to prove it was defamatory and show damages.
Another possibility, seen the fact she's a minor, is that a law exists that says minors can't consent to it (and need their parents to agree too, or such). That too, depends on the specific laws of the country. All in all, if she really agreed to the CC licence, she shouldn't complain. If she didn't, it's the photographers fault. If it's truelly defamatory, it's virgins' fault.
In no way is the Creative Commons organisation involved.
--- "To pee or not to pee, that is the question." ---
This is the reason a thing called a "model release" exists. If the photographer had asked the kid to sign a release, and if she'd done that, then the rights of each party would be spelled out in the release.
Now, I'm sure hardly anyone who posts to Flickr gets model releases, or even knows they exist. But, the notion of suing for unauthorized use of your image is not at all new. Creative Commons, and the others, might be vulnerable on the grounds that they failed to exercise due diligence in ensuring that the girl had, in fact, agreed that her photo could be used in that way.
I don't think the license aspect has anything to do with this; the girl did not license anything.
-- Slashdot: When Public Access TV Says "No"
I think we all accept that owning the copyright to an image does not grant you the automatic right to (e.g.) use a person's likeness for advertising (and so on). If the permissions had no model release, Virgin were extremely negligent. Period.
But to get to your point, even if the details indicated a model release, or similar permissions, common sense dictates that Virgin (or their ad company) should not have taken this at face value. Flickr is not a "professional" photo library where it could reasonably be expected that the photographer (or someone involved) is aware of the legal issues. Flickr is a site where Joe Public can upload his photos. Rightly or wrongly, it doesn't take a genius to figure that a proportion of those uploaders will either:-
- Not understand the concept of model releases at all and mistakenly overlook what they are saying people can do with the photo; or
- Not really care about the concept (or think it's not really important and won't come back to bite them) and tick the box anyway- whether or not they understand the implications; or
- Think that they have the right to do something that they don't, either because of some vague conversation of comment they had with the person in the photo, or more likely because they think "it's my photo, I can do what I like with it!" (see first point)
You could argue that the uploaders *should* be aware of what permissions they have the right to pass on to others, and so on. But like it or not, many won't, and the ad company should have realised this. It's their job, and they (or their legal team) should be well aware of legal issues surrounding photo rights. The issues I covered about should have been obvious to anyone with experience in the area(*1) Probably related to English law; and while we're on the subject, bear in mind that this situation is complicated by straddling two countries.
(*2) I'm not disputing that the guy owns the image copyright.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
Just finding an image on flickr flagged as CC is not enough, and it's not CC's fault if someone fails to understand that. I run into these issues a lot with my blog (which is not a business, but if it ever starts making money from ads perhaps a lawyer could decide it is commercial), and it would be nice to get a really precise definition of "identifiable" from a legal perspective ("public figure" seems to have some gray areas, too). What if they're disguised? But there are a lot of photos I would love to use on my blog that I don't touch - especially sports photos. If someone posts photos of a pro sports event (this could include college sports or the Olympics, too), they probably don't have the rights to release the photo via CC. Most tickets these days have a clause prohibiting photography, and the event's organizers claim a copyright on whatever you see on the field. As another example of these sorts of issues, today I found a photo on flickr under CC license which I was planning to use, but the photo was actually not from the flickr user and was in fact copyrighted.
If you look at proper stock photography sites, all the photos with models in will have something like "Model Release on file", written next to them. It's there for a very good reason.
Yeah, I had a sig once; I got bored of it.
Going back to the original story, did the youth conselor even have permission to post photos of the kids he was taking pictures of? Some families do not like having their kids photos on the net, especially if the kids name is attached.
Yes.
No. The photographer did not use the photo in a commercial setting. Virgin Mobile did. It was Virgin Mobile's job to check for the existence of a model release, and they evidently did not do that.
...phil
"For a list of the ways which technology has failed to improve our quality of life, press 3."
Actually, he did. The Creative Commons license covers the photographer's copyright rights, which is independent of the model's rights. Whatever else goes on, the photographer holds rights to his photograph, and can do with those rights what he wishes. The publisher (Virgin Mobile) is responsible for getting clearance on both sets of rights, and they missed the model release.
True.
...phil
"For a list of the ways which technology has failed to improve our quality of life, press 3."
Copyright only covers the right of the photographer and/or editor of the picture.
A big company like Virgin Mobile aught to know better than to just grab a photo off the web, no matter what some supposed license on a website states. This is fraught with dangers.
1. What if the website stole the pictures from somewhere else? Your going to base your entire ad campaign on some text that you found online without even contacting the photog and getting it in writing? What happens when the real photog shows up?
2. There are other rights involved with a photograph besides just copyright. The right of the person whose picture was taken is one. She may have various rights to privacy, to proceeds from her publicity and to not be shown in a false light. Smiling for the photograph doesn't mean she waived those rights. How was she supposed to know that it would even be posted online, much less that it would be used in a national ad campaign?
3. The model and other elements in the photograph may also have their own copyright to items that appear in the photograph, especially if it is a picture of some kind of performance.
4. If you are going to be insulting the people in the photographs, you damn well better pay special attention to these things. This particular ad is only slightly insulting. Some of the other ones are far worse.
Do you care about the security of your wireless mouse?
Somebody took my picture (not even nude or anything no less) and used it to make a profit and now I'm kinda semi-famous, I bet I could make some money off of this...frigin' WAAAH!
If you read the site, you will see the brother is in there speaking about getting loads of money for this. Check the teacherjamesdotcom postings. He is the older brother of the girl and is purely after this for money. It will be interesting to see what happens. In particular, the photographer was allowed to CC license since it was a crowd photo. But the girl (aleeviation in the site) was cut out from the photo.
I prefer the "u" in honour as it seems to be missing these days.
Yeah but how in the blazes can you sue a company operating in another country, based in another country for a photo used in ad campaign in another country via a Texas court? This case would need be filed in an Australian court. Seeing that other countries are not quite as understanding of this kind of case wasting court time it would either get thrown out or a very small award given. Which o course is why it has been filed in the US and has CC included.
This isn't some badly wronged individual fighting for justice (no cancer from contaminated ground water here) this is the parents of some mildly slighted individual seeing an opportunity to make some money. No doubt they are being egged on by a lawyer with dollars signs in his eyes.
n/t
you had me at #!
"Note the HEAVY editing"
What heavy editing? They just reversed/mirrored the image so it flows properly. The wall was already there.
"but it looks like the photographer chose to do this on his own without asking the family. He took a picture at a summer camp, and used it later, they say they had nothing to do with agreeing to it"
It gets worse, if you read the Flickr discussion pages, the photographer was wondering if he could get "free stuff" or payment for Virgin Australia using the image.
I think I'd feel insulted if I saw my face in that ad, too. I can understand why she's feeling aggrieved.
On the other hand, her lawsuit seems to be doomed to failure; it's in the wrong country, suing the wrong people, on a basis of law that might not apply where the alleged infringement occurred, and where the use made of the photo was explicitly permitted by its licence. And when they lose, they'll have a nasty legal bill to pay, which won't make them feel any better.
So the question is - did the family ignore legal advice in favour of their own feelings of grievance, or have they got a lawyer who likes to say a $200/hr "Yes" even when s/he really shouldn't? And if the latter - how does someone know when their lawyer is just telling them what they want to hear, for whatever motive?
Is the chick in question at least hot?
Anybody got a pic?
This is a first amendment issue. A google image search for "kids" returns 67,400,000 results. Can you give an example of the law which makes this illegal? I'm sure there are not model releases for each photo. Should Google pull all those "illegal" images from their search results?
I've photographed kids and put their photos on the web, as have about a million other people. Publishing on the web is a limited "giving away", but it does not mean I'm entering a contract to license the photo for all conveivable use to anyone who swipes it.
Food for thought:
In the US, most laws related to model releases are case law, there is unfortunately no legislation that outlines when a release is needed and what it should say. A model release valid in California may not work in New York, much less Australia. Even then, certain uses (such as "sensitive subjects") require a different model release. It's way too complicated to just say "all web publication of photos of children is illegal".
If you respect other people's first amendment rights, you will start out assuming people have a right to publish/speak, and then very narrowly carve out limited exceptions where there is clear law. If you want your image to remain private, the Restatement of Torts (Second) says it's NOT private:
www.cgstock.com
Ok but the picture was presumely taken in the US. It was posted to a Canadian site and then used by an Australian division for advertising. Really by the time Virgin touched I can't see a reason to go by US model release laws. Does Australia have relevant laws? If not then wouldn't a copyright license be enough?
It's interesting that people are saying the lawyers should of known better but should every country be obligated to learn US law?
As mentioned in the article they should be at least suing the parent company if at all, VM USA have no control or responsibility over VM Australia.
I personally hope the case gets thrown out, they don't have a leg to stand on, seeing as they cant sue VM USA and they can't sue CC who have done nothing wrong, and even if they sue VM Australia/Virgin itself, they have obliged by all the rules by including a link to the flickr picture, as set in the CC license.
McCartney fans pay bus tickets. [...] Lennon fans too, with discretion.
http://wiki.creativecommons.org/FAQ
Q: I don't like the way a person has used my work in a derivative work or included it in a collective work; what can I do?
A: If you do not like the way that a person has made a derivative work or incorporated your work into a collective work, under the Creative Commons licenses, you may request removal of your name from the derivative work or the collective work. In addition, the copyright laws in most jurisdictions around the world (with the notable exception of the US) grant creators "moral rights" which may provide you with some redress if a derivative work represents a "derogatory treatment" of your work. Moral rights give an original author the right to object to "derogatory treatment" of their work; "derogatory treatment" is typically defined as "distortion or mutilation" of the work or treatment, which is "prejudicial to the honor, or reputation of the author." All Creative Commons licenses (with the exception of Canada) leave moral rights unaffected. This means that an original author may be able to take action against a derivative work that infringes the moral right that protects against derogatory treatment. Of course, not all derivative works that a creator does not like will be considered "derogatory."
If the photographer made the picture available without the girl's consent, he is at fault. There's no doubt about that.
However, you can't just take a CC licensed picture of a person and do anything with it. Considering that the tag line makes an implicit statement about the girl's sex life (or absence of a sex life), the lawsuit against Virgin is not frivolous. Hell, she could sue Virgin even if she had put the picture under the Creative commons herself.
Were they supposed to personally vet all parties involved?
If it came from flickr, they intended to put potentially derogatory and embarrasing captions on it? You bet.
Were they supposed to personally vet all parties involved?
I'm not a huge internation corporations that puts up billboards and has national advertising campaigns. Your comparison to someone who puts a photo on a website is absurd.
Or audit all the software on your machine to ensure that the people who licensed it to you really had permission to do so?
I'm not a huge corporation with billions of dollars at stake. But on the whole, I'd say that many corporations DO do that kind of think occasionallyOr audit all the software on your machine to ensure that the people who licensed it to you really had permission to do so?.
I guess I find it a little odd that you think the rules and practices are exactly the same if you're one guy on the internet posting a "this is my friend from camp" photo, or a huge multi-national corporation engaging in a national media campaign putting embarrassing captions below photos like "virgin to virgin".
AccountKiller
The big problem with a very fair creative licence such as the CC is that it can give those who apply it to their works a false sense of security. Just because the CCL is fair and is meant to be applied and used by fair people it doesn't mean it can't be exploited by *ssholes or people who don't care about common decency.
If I give away my Photoportrait under the CCL and it appears in tomorrows newspaper in an advertisement for a Nazi-Party, Nuclear Energy or the new P2000X Puppymulcher then there's nothing I can do about it. Even if the advert is CCLd itself. I'd say the girl is out of luck and learned her lesson. If the picture was used in a decent add, then she'd be best off if she'd support it. Then no one can use it in a different context.
People need to be aware of this sort of thing in the internet age.
Here's a simular problem: My Name appears all around Google and Google groups, because some dickhead thought it would be a smart idea to put out all Fidoechos of the last decade (the Fidonet required real id and real names) bearing the name of each posts author. They didn't get my permission, not that of most other Fidonetters, I presume, but it's still there in the archives. Thus when someone searches my realatively rare name, he get's quite a few hits for ancient posts, including some call's for help on Linux from 8 years ago. Not a good thing if you're a Linux expert now and what to sell yourself as one.
Being paranoid about what you put where on the web, about yourself and under what terms, is a good thing. Nobody's gonna die if he politely has to ask for your permission to use your creative works.
We suffer more in our imagination than in reality. - Seneca
Thanks for the picture. I can see why the photo got put in an ad -- she's a (very) cute girl! I hope she gets compensated for Virgin's stupidity in exploiting that.
timothy
jrnl: http://tinyurl.com/c2l8yr / foes: http://tinyurl.com/ckjno5
Requiring due dilligence largely makes CC's existence largely moot.
Not really. This is the same as trying to GPL code that isn't fully yours. No license can account for for its misapplication to property that that person applying it does not have full rights over. Calling this a "trap" in the CC ignores this fact.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
As others have pointed out
Read the license
It states that the license does not imply a model release.
Here's my Take on why CC/Flikr/Virgin will get biten on the ass. Unless Flikr has a properly exucuted Model Release on File at the companies headquarters, they have absolutely no legal right to allow commercial exploitation of any persons likeness/photograph. CC is legaly in hot water by not having a disclaimer that the CC license is not applicable to photographs involving people. The license was created for written works only and should state that but as they have not, they're now going to get hit for malpractice. In the case of Virgin. Some one screwed up royally and they're going to get hit the hardest for not having asked two simple questions. Is the model of Legal Age? Do we have a valid Model Release? and because of not having checked either issue, they're going to pay dearly for this lack of vigilence.
Mod me up/Mod me down: I wont frown as I've no crown
You disgust me. Your argument is nothing short of FUD or extortion: "you must pay me because boilerplate legal documents are never OK." Whether this is the case or not determines whether this is FUD or extortion, but it is disgusting either way. The law has failed us if it is so complex that boilerplate agreements are unusable.
not his professor!
It just seems to be asking for trouble. I thought stock photos from the established providers were pretty cheap. Is going for free on Flickr really worth it?
Unfortunately, there seems to be a trend developing by "reputable" firms to deprive image creators of their due rights. Corbis recently made a call to all "creatives" to send them images for their "I Am Buried" competition. The terms and conditions were outrageous, denying creators any rights forever, and "throughout the universe".
:>)
Read about it here, and act.
http://www.pro-imaging.org/
(Scroll down the page a bit to the News Flash)
don
3. Virgin didn't want to be sued by Adidas [1] [1] for implying Adidas is for virgins
If Virgin mobile complied with the terms of the license that the photo was provided to them under, then they are not liable.
I see no rationale for the authors of the license used to be remotely involved, and certainly not liable.
The photographer may or may not be in trouble - it depends on wether he had permission to use the image of the girl in question and wether he had permission to release it under the license that he did.
--
Does anyone know what the law says in regards to copyright of a photograph of a person? I would think that both the photographer as well as the photograph-ee should both have some rights, which they can grant choose to grant to each other or not.
Lessig has a blog entry about the suit.
Whoops. I read "Creative Commons Corp, a Massachusetts nonprofit that licenses sharing of Flickr photos" and figured it was a third party corporation that trolls Flickr for CC pictures to sell to companies. My bad, and the articles for a misleading description.
Exemption for public figures.
Every once in a while there's an argument/lawsuit about what exactly a public figure is, and where exactly public figures stop being public figures.
That is, can you say "on the record, this is not officially legal advice", and then proceed to informally advise someone about the law with impunity? I mean, I imagine that I, a non-lawyer, could go look up the relevant law books and say "well according to the law (USC section foo article bar), blah blah blah, so if I were you I'd do such-and-such". In any informal, non-technical sense of the phrase, that's "legal advice" - I'm giving someone advice about the law, the same way I might offer relationship advice or car advice.
So can a lawyer do that and not be held any more liable than I would, provided he disclaim "this is not legal advice", in the technical sense of creating an attorney-client relationship? Or perhaps, conversely, could a layman like me be held as liable as a lawyer if I cite the law and make recommendations without such a disclaimer?
-Forrest Cameranesi, Geek of all Trades
"I am Sam. Sam I am. I do not like trolls, flames, or spam."
Bunch of wannabes (except for those of you who are real lawyers, hehe).
I shoulda went into law. $igh. Is 35 too old to start skewl again? Nevermind.
Camping on quad since 1996.
They used what basically amounted to a stock photo according to its license. Were they supposed to personally vet all parties involved?
A stock photo library (which Flickr is not) makes assurances that they have the needed license from the photographer AND that all necessary waivers exist for a photo. Flickr doesn't do that. To use a photo in an ad, you must clear the copyright (they're OK there, the license was granted) AND a model waiver (oops, nobody said that existed!).
So, yes, where a good faith assurance is made you can rely on it. The problem is that there wasn't an assurance (in good faith or otherwise) that the subject had signed the appropriate waiver.
should be the girl's youth counselor. The counselor is the one who took the photo and released it under the cc license, so the counselor is the responsible party not the users of the photo.
Only 'flamers' flame!
Does slashdot hate my posts?
Thanks for a very cogent post. I'd just like to point out that both the photographer and Virgin published the photo. The former just published it on Flickr, and not for profit. IANAL, but based on the Wikipedia article I assume any kind of publishing requires a release.
I'm sorry if I haven't offended anyone
Does using it in a commercial way matter? How do you determine what is commercial?
Libel??? Why Libel??
Rirelobql xabjf gung EBG-13 vf gur yrnfg frpher rapelcgvba rire, ohg jbhyq lbh jnfgr lbhe gvzr npghnyyl qrpelcgvat vg???
Not a single thing you said applies specifically to CC licenses that do not apply to licenses in general. Not a single thing. All licenses that grant rights to others fail to account for situations in which the person assigning the license does not have rights to do so.
Thus, singling out the CC licenses for containing "a trap" is nothing more than spreading FUD.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
Just to note that while there are many comments saying that the photographer shouldn't have permitted Virgin to use the photo of the teenager commercially, the licence makes no mention of selling in the description...
Creative Commons Attribution 2.0 licence used at the time.
What is implied from the selection of licences available on the site, is that you can use the photo commercially because it doesn't have the non-commercial restriction. When you're selling photos from other's works, it is especially important that you understand the legal implications before doing so.
Interestingly, on the Creative Commons' Public Domain dedication, the text says that when you release your work, you permit it to be used "by anyone for any purpose, commercial or non-commercial, and in any way". This implies that it can be easier to release a work under a CC licence, than it is with the public domain dedication, due to potential legal complications.Taken in the context of the advertisement the slogan implies that she is not a virgin. The ad says "Dump your pen friend", shows her picture, and then says "Free text virgin to virgin". The line "Dump your pen friend" applies to her; "Free text virgin to virgin" does not.
While the title on the original photo indicates she was making a peace sign, in some cultures the V sign can be seen as a means of taunting or threatening someone.
They sued the wrong party. Should have been Flickr. Creative commons will be able to have thier legal fees covered, if they want to. Probably won't, though.
Everybody knows 3 people with my name.
I don't think so. They used what basically amounted to a stock photo according to its license.
But they got it from flickr, which is well known to be an amateur site.
Your argument would apply only if the photo was labeled as professional commercial stock by a company that claims that it keeps all model releases on file.
Companies can be held liable if they do not perform appropriate due diligence on their vendors.
Virgin inexplicably used flickr as a vendor for commercial stock photography. This shows that Virgin did not perform even the most basic level of due dilligence on its vendor.
I agree that it's important to consider the consequences of posting photos of people online, but, otoh, it is not the photographer's job to prevent Virgin Mobile from breaking the law. (If I understand the law correctly, it was Virgin's responsibility to acquire a model release.
re: privacy considerations, as an amateur photographer, I try to be aware of which people I know are sensitive to photos being posted online. I ask those people to ok photos before I post them. There's the danger that I may miss some people, and it is often impossible to ask strangers. That's a concern, but I think that there is no way to get around this and still maintain the important art of photography. And of course if anyone asks me to take a photo of them down, I'm happy to do that.
Furthermore, I never tag flickr photos with last names. Facebook presents an interesting issue, b/c everyone tags photos with full names. In that case, I make my photos friends-only. But of course, since albums are public by default, photos of me that other people post are publicly viewable. This would be solved if they would add the ability to block the public (non-friends) from viewing any photos tagged to you.
Of course, by cc-licensing all of my photos, I still run the risk that my photos of people can be abused by non-commercial entities, b/c AFAIK you don't need a model release for non-commercial purposes. I think this is a small risk, though I could eliminate the risk by claiming full copyright on all photos of people.
Ho-Wee Wong was Vey-Wee Wong to sewl this fodo. huhuhuhuhuh.
Lawrence Lessig said "A world where you need a lawyer to sneeze is a world where only the large and entrenched have the freedom to breathe." If the laws are so complicated that nobody understands them, then nobody has the freedom of knowing that they are within their rights to do what they are doing.
Morally, Virgin should try to make this right by the offended family. They should hold their advertising agency accountable for not having performed due diligence in guaranteeing ownership of the works they used. It's too bad that everyone is bound by laws, and risk avoidance (and a legal system that profits off of punitive damages) instead of morals.
I wish I was more attractive and photographically inclined. I'd post all sorts of pictures of myself into the public domain. If you're offended by the tangential implication that you're a virgin, then I'll take the heat for you. Perhaps my son can help me take the pictures.
- deadshift
Australia Does require model release but there is a catch (Full link http://4020.net/words/photorights.php#commuse )
From the site covering the issue on Australia's side
Despite assertions the photos were used legitimately via Flickr's "creative commons" license, the fact is Virgin never obtained consent from any of the people shown in the ads: the license only applied to the photographer's copyright, not the subject's consent to use their likeness. Thus: (1) the images were used to sell products and services and (2) photo-subject consent was never obtained. Consequently the ads appeared to be in direct contravention of the TPA, and considering the magnitude of the campaign, prompt action could then be expected by the ACCC to injunct and fine the things out of existence.
Or so it would seem, except for one major problem -- either by accident or design the people images were not taken in Australia and neither the photographers nor subjects were Australian citizens. Which put them beyond the jurisdictional scope of the TPA or any other Australian legislation! If the photographs were taken here, then the subjects would have a case. If they were taken overseas of Australian citizens, again people would have a legitimate complaint. But foreign persons + foreign photographers + foreign locations?...
Nyet.
It goes on to state Virgin Australia has pulled the ads anyway.
I can not see how this will hold up at all in a US court when the actions are not Illegal in the country it happend.
Point of order: the brick wall is in the original; and they didn't move the white sleeve from right to left so much as they flipped the whole picture horizontally.
When are publicity rights relevant? Publicity rights allow individuals to control how their voice, image or likeness is used for commercial purposes in public. These rights are relevant to any work that contains human subjects, such as photographs, audio or video interviews, plays, songs, and other spoken or visual content. When transmitting this sort of content, including the voices or images of anyone other than yourself, you may need to get permission from those individuals if you are using their voice or images for commercial purposes. This is a distinct and separate obligation from obtaining the copyright license, which only gives you a license from the author (or photographer) but not from the subjects. A Creative Commons license does not waive or otherwise affect the publicity rights of subjects.
I told you never to post again! Now STOP!!
Exactly. Copyright isn't the end-all and be-all of permissions problems. I'm sure Virgin wouldn't have had any problems if they'd used a CC picture of squirrel or something. The Wikimedia Commons has been instituting personality rights and trademark tags (though it's unclear exactly how widespread their use is; this case is an excellent illustration of why they need to do so.
Laws do not persuade just because they threaten. --Seneca
Im a graphic and web designer and have worked on many large commercial projects including websites and print and advertising campaigns. As a photoshop jockey a really important part of my job that very few people who aren't designers don't think about is finding good quality LEGAL pictures to use in my work. Once you realise that if you use images you don't have rights to in an expensive campaign for a big client who can get sued for a gazillion dollars you very quickly learn to always make sure you use images that are ok to use commercially. That means instead of using google images to find a picture of something that you copy and paste you use proper legitimate stock photo library sources like gettysimages, photolibrary or istock. Even more important is that if you don't have the budget from your client to buy decent pictures but you have access to uncopyrighted good quality pics either from the internet or previous work for other clients is that you DONT use those pictures and make do with what you can even if that means using no pictures at all and just relying on good typography and layout to get the job done. The legal risks are just simply too great.
Basically what we have here is an inexperienced designer ripping stuff from Flickr - a site that is quite obviously not a commercial stock photo library and their art director not checking with their designer if the images they used were legitimately obtained. Once the artwork leaves the art department and goes on further for approval by the client it is already assumed that all material is copyrighted and legal as part of the job of any decent art director/Senior Designer is making sure all material used in all projects comes from a legal source. They should be the ones getting the blame for this not Virgin or the photographer. I would assume that whatever agency did this job for Virgin would probably be getting their contract reviewed/cancelled pretty soon as the whole incident makes them look pretty unprofessional and careless.
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The questions just let you select the boilerplate license that has the features you claim you want. That is, the site is effectively _indexed_ by the criteria that you yes-and-no to the questions. So it cannot, by a _rational_ _man_ standard, be considered "drafting you" a license. (IMHO of course). [That is, the licenses exist separately and you can go directly to one etc, so you _are_ pulling a "form contract", you are just being asked "which form" in detail.] I surely hope that the questions you ask as a lawyer lead to something more expert-ee (to coin a word in jest) than the process as you describe it.
Meanwhile, I am pretty sure (but I don't use the "service") that each time you upload something to flickr (sp?) web site, they do _not_ direct you to "walk" the questions over at Creative Commons, and then copy the "drafted" license into their server along with the picture. I would bet that they, flickr, provide you with some sort of check-box or drop-down where you pick the license by name from a list (etc). I feel safe in making this guess because the storage cost of all those individually "drafted" licenses would be non-trivial, and you wouldn't then be able to search those images "by license" without doing it as a full text search. (and so on, to short my own "area of art" expertise in the name of brevity.)
So, since we can darn well bet that "photographer" never actually went to the Creative Commons web site, and since we know that Creative Commons didn't do _anything_ to customize the "form" licenses they offer, free of charge and without contract/agreement/etc to everyone whether they visit the site or company itself, they don't, by any stretch of the imagination, have any relationship to the "photographer" at all. To argue otherwise would be to suggest I could hold (Thomas Pane?) liable for the outcome of my actions if I first shouted "give me liberty, or give me death" because he wrote the words and "provided them to me" and via the mechanism of history. (Ok, that's a little over-dramatic 8-)
By your legal theory, all those "Will in a box" kits (etc) are liable and should be party to any action whenever the produced documents go to court.
The fundamental error of law here seems to echo in the summary, where "Creative Commons license" is being read as an affirmative act. The implication that the Creative Commons company _granted_ the license somehow, as opposed to the photographer, is highly confounding, to me at least.
Meanwhile, I don't see any grounds for action in implying that a 16 year old girl is a virgin. By law she is supposed to be, and you cannot libel someone with a positive label anyway. They didn't say "text a slut with virgin mobile". If her friends are pointing and laughing at her yelling "ha, ha, you aren't putting out" etc and it is pissing her off, then something is very wrong and it is happening in the girls immediate environment.
Let's face it, chick's on the poster, and chick wants some scratch. And captain councilor took the picture and wants some lucre himself.
This isn't a complex legal theory. This is greedy people wanting "what they deserve, plus as much as they can get".
Besides, what ever happened to "you cannot trespass with the eyes". The expectation of privacy is pretty non-existent once you post something to the internet. If she didn't object to the picture as posted in the first place, my purely human instinct says she doesn't get to go back and complain about it now. You are not _allowed_ to suck things back out of the common pool of culture. Copyright gives you a limited monopoly, but then its public domain all the way. The photographer chose not to limit that monopoly or require "consideration" when he made the material available. That is, he published and he said "here, use this for business if you want". Horse, this is barn door, barn door, this is horse, I know you will never see each other again, but that was it.
I _do_ know why "model releases" etc, exist. But since the "model" isn't
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
How dare they paint my darling with the onerous label "virgin"! This is a smear she will never live down! She is as complete a slut as daddy could possibly have raised, and to have her suffer under this libel is intolerable.
Last I heard, you couldn't ruin someone's reputation with positive attributes nor praise. I think you get where the argument is going here.
Meanwhile, while the "photographer" is shait out of luck over the money, the girl shouldn't have gotten a lawyer, she should have gotten a business manager. They are much better at turning this sort of thing into huge piles of cash and follow-on work. She _could_ have leveraged this into he being "the Virgin virgin on the move" or whatever the equivalent to the "can you hear me now guy" would have been.
She should sue her parents for suing, so that she can get all the money they cost her by suing all these other people. 8-)
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
If a picture, any picture, was released as freely reusable commercially, then why they had to ask the person on the picture? What was illegal in Virgin's action? It might have been tasteless, but it is within the usual tastelessness of commercial advertisements. The girl shouldn't have let her picture to be licensed commercially (and if the photographer didn't ask her, it is clearly the photographer's fault).
Patents Drive Free Software as Hurricanes Drive Construction Industry
I honestly don't really care about model releases. Why? If you're publishing stuff on Flickr, well, if you NEED a model release to publish, then you should have a model release to publish. People need to really understand the difference between file-sharing and publishing. It would be limited to simply being file-sharing, IF, it was only possible to access the files by having a subscription and it were limited down instead of world+dog having access.
Personally, I think if you PUBLISH and then allow for commercial use, then we're at a point where a model release would be inferred if required in your jurisdiction.
More likely, it's a matter of stupid sheep using the Internet, feeling embarrassed and then having some lousy legal advice that says they can get a lot of money. I hope they aren't actually paying a lawyer anything up front. Texting 'virgin to virgin' with Virgin Mobile means, um... texting with their network? But we're talking about Baptists in Texas, and being that I live in Georgia, home of the Baptists, I can tell you that they get indignant and there are way too many who swallow what they hear and don't think. This is the same church group that has decided to go back and restrict the rights of women. Add to that the teaching standards of Texas (which I think may actually be better than Georgia these days, but not by much), and I don't expect these people to be bright.
If they were to show up on Judge Judy, she'd be telling the plaintiffs that their problem is with each other, most likely.
Of course, now they won't back out of this suit. (Pride seems to be a big issue for a lot of people.) Well, it's a great way to add to the publicity and show off how dumb they are. I would think this suit would be worse for the girl's reputation than the 'virgin to virgin' text, which didn't mean anything. (And if she's Baptist, should not insult her reputation at all - hypocrites.)
Linux - because it doesn't leave that Steve Ballmer aftertaste.
Virgin is known for pulling stunts that get them in a little hot water, but in the process raise their profile and get them some ink. Perhaps they thought 'whatever happens, we come out ahead', knowing they might get sued.
Who is responsible for obtaining the model release?
Personally, not knowing all of these answers...and being a n00b when it comes to such legal matters, I would blame the photographer for not obtaining the release.
This shall be an interesting case to follow...
You make an interesting point, though I would note that the fact that the work is published doesn't change the need for the release. I do not know exactly what CC license was used either and I would have to read the whole thing to tell you whether Virgin could have made any assumptions about using the photo based on the license the photographer granted. My first inclination is to say it is Virgin's responsibility to clear the work it wants to use since it is Virgin's desire to use it in a commercial context. Since it seems reasonable that somebody saw the photo on the guy's Flickr page, an e-mail asking him who the girl was would have been a start in the right direction.
With respect to the photographer, we really do not know what was said to the girl regarding the use of the photo. Maybe she and all other kids know that Counselor Bob (or whatever his name is) always takes photos at camp functions and posts them on his Flickr account. That, in my mind, is an implied license for the photographer to post her photo. While I am not aware of any case law on the point, it seems to me that with the ubiquity of camera phones, digital cameras, and video recorders, the courts may eventually acknowledge that permitting your photo to be taken is de facto consent for the photographer to use it for non-commercial purposes, such as on a Flickr, Facebook or MySpace page.
I'm sure these can't be uncharted waters -- I bet there is case law already on this stuff. What I'm thinking of are those DIY legal kits like, "Write your own will without the help of a lawyer," "Write a renter's contract," and so on. It's an extremely similar situation: those legal instruments are drawn up by people who never see their customer/almost-client. Are they being negligent, providing boilerplate without ever actually consulting with the people who will use them? I bet someone has already asked that question. Just a guess -- but I notice you can still buy those kits!
$META_SIG_JOKE
See my small cartoon:
http://geekandpoke.typepad.com/geekandpoke/2007/09/the-podnoses---.html
Bye,
Oliver
Quite honestly, this sounds a lot like a case I heard about a while ago about a girl in England named Lara Jade put her self-portrait up on the website deviantart.com and a porn company in Texas stole it to put on a DVD. The major differences are that the site Lara Jade posted the picture on specifies that the artists still hold the copyright for anything posted there, and the photo in question was a self-protrait so she definitely held all the rights.
"a fool to claim one law makes the other useless"
must be
"a fool to claim that one law doesn't makes the other useless"
obviously
--- "To pee or not to pee, that is the question." ---
Only a very few weird countries think that citizenship grants teir law some extra territorial relevance.
In most countries is territoriality (i.e. an alleged crime must be commited in a given country for that law to apply) what counts.
IANAL but write like a drunk one.
They are used commercially. They sell the photos to the magazines, magazines are sold because of the photos. It's a commercial use!