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.'"

Comments

Actually its the photographer's fault

[mozumder]

for not acquiring a model release before putting his image out for commercial use. Both the girl and Virgin could sue the photographer.

Re:Actually its the photographer's fault

[janrinok]

I agree that a model release is often used but I understand that it is for the model's protection i.e. it is not legally binding upon the photographer to obtain one but it is the interests of the model to make sure that one exists to limit usage of the photograph such as, in this instance, by Virgin. Of course, the MR also provides protection for the photographer but it isn't essential. For example, how about a photograph of the centre of a busy city. The photographer cannot be expected to obtain a MR for each person that is in the picture. But where a model agrees to be photographed, e.g. for her own use, then she would be wise to ensure that an MR was agreed limiting the photographs subsequent use by the photographer who still holds the copyright for the image.

Re:Actually its the photographer's fault

[ceoyoyo]

The rules for model releases specifically exclude crowd scenes, where the person is a public figure, or photos where the person is not identifiable or not the subject of the photo. There must also be some exception that allows news programs to do street interviews.

You need a model release if you're going to use a photo commercially though.

This is something to remember for anyone who decides to slap a CC license on their work. I wonder who's legally at fault... the photographer or the company who sold the photo to Virgin for not confirming that there was a model release. Probably both.

Re:Actually its the photographer's fault

[Kadin2048]

You need a model release when a person is identifiable and comprises a significant part of the photo. I.e., a street scene in New York doesn't require a model release from every person on the street, because none of them are really critical parts of the photo. They're just scenery. And probably they're hard to make out individually anyway, so it's not like anyone's 'image' is really being used.

Where things become different are when it's a photo of a particular individual. In that case, the individual has a certain level of control they can exercise over how their image is used. E.g., they can object to their image being used to promote something they disagree with, or for some commercial purpose. There are exceptions to this, but the courts have historically given people a pretty wide 'bubble' around how their identity is used in the commercial sphere.

A model release protects a photographer and the photographer's clients (people who might buy his photos and use them commercially) from exactly this sort of problem: a model coming back after the fact and saying 'hey, I didn't want you to use my photo in that way.' A model release is a blanket permission basically saying "I grant you permission to use my image for anything, in any medium, forever..." It's protection for the photographer, and it does so by giving up a right that the model would normally have over their image.

Re:Actually its the photographer's fault

[dragons_flight]

Yes. Most likely, the photographer lacked sufficient rights to make the image available for commercial use in this way, and so the photographer would seem to bear the largest share of the blame and legal responsibility.

However, the libel claim adds interesting wrinkles. If a court really buys into the idea that the girl was unfairly placed in a position to be ridiculed (which is not obvious given the description of the ads), then a whole additional sets of rights come into play distinct from copyright. You may freely own an image, but you can still commit libel with that image, by portraying the people in the image in an unfair light.

So there is an argument to be made that even if Virgin were legally authorized to use the photo with respect to copyright, they still hadn't neccesarily recieved sufficient permission to use it in a way that would bring negative attention to the person pictured. That one could turn on the details of what the court considers CC-BY to mean and cover. Ordinarily one would expect a signed contract specifically addressing this before using a person's image in a way that could be characterized as negative. So it's possible (though not neccesarily likely) that Virgin could be found to have acted reasonably with regards to copyright and still have committed libel.

Re:Actually its the photographer's fault

[arkarumba]

A model release is NOT a blanket permission saying "I grant you permission to use my image for anything, in any medium, forever..."

That depends on the specifics of the model release contract.

For instance, someone may be okay with their photo being used "in good taste" but not happy for it being used to sell annal insertion sex toys. More specifically, a supermodel may restrict rights for photos from a shoot for one product, to be used only with that product, in that particular campaign, is a specific magazine publication/edition, for a specific number of prints.

By default the phototographer has NO RIGHTS for the image to be used commercially. The model rlease grants specific rights. However for these to be useful for stock photos, where the purpose is not known in advance, the model relase is generally fairly broad brush.

Also note, that a model release IS a contract. To make it valid you need to make sure that the model receives some valuable consideration (money/free print) and is aware of this point.

Finally, to my mind, CC is completly in the clear as a non-involved third party. The main fault lies with Virgin for not ensuring the image had a model release. Note that the photographer is allow to sell his copyright images without a model release - ie as individual framed artistic images. It is the pairing of the image to endorse a product that is core issue.

Re:Actually its the photographer's fault

[Christoph]

for not acquiring a model release before putting his image out for commercial use.

NO, it's NOT the photographer's fault (writes a photographer).

Commercial use includes EDITORIAL use, such as articles, textbooks, etc. which requires no model release. You are actually talking about only one form of commercial use, advertising use, in which case the PUBLISHER, not the photographer, needs a model release (the photographer is usually the one who obtains a release, but it's for the benefit of anyone who publishes the photo in an ad). A release helps the publisher prevail if a lawsuit for appropriation of likeness is brought (violation of a person's right of publicity).

There is a pervasive belief in the myth that:

1. All "commercial" use is advertising use and requires a model release. Most commercial use of photos is actually editorial, and no model release is required (non-commercial use refers to personal use such as making a copy for yourself).
2. A photographer is liable for what other people do with his photos.
3. A release means you won't be sued (no, it only means you are more likely to win a lawsuit; anyone can sue for anything, unfortunately).

If you publish a photo, YOU are liable, not the photographer or whoever gave you the photo. As an example, a person may sell you a photo he didn't take, you publish it, and the true photographer then sues YOU, the publisher, for copyright infringement.

Real life example: I am suing a corporation for copyright infringement right now, after they published a photo of mine in their photo book ad (without my knowledge or consent). They claim a photographer named "Michael Zubitskiy", who they got the photos from, is liable, and they produced a signed and notarized sales agreement with him. The court ruled that they, the publisher, have strict liability, nobody else. Under the logic that the photographer is to blame, and I had to sue Michael Zubitskiy, I would have a problem -- Zubitskiy is a fictional person the corporation made up (see if you can find him, I've offered a reward). No, my claim is against the publisher (as the court has ruled).

If a person was in my photo, they would ALSO sue the publisher, not alleged provider of the photo (Zubitskiy, who doesn't exist) or me (who never consented to or knew about the advertising use of the photo). The details of this litigation are here: Gregerson v. Vilana case no. 06-cv-01164 D. Minn. (I'm not a lawyer, I'm representing myself in court)

A person aggrieved for the publication of a photo must sue the publisher. That publisher could then sue whoever provided the photo if there was a paid contract to buy certain permissions of use for the photo.

Where's the model release?

[Derling Whirvish]

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.

Re:Why the License

[topham]

It's realtively standard practice in such a lawsuit to include every party and let the judge determine which ones are actually potentially liable or not.

Copyright laws are not the only use restrictions

[3Suns]

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.

Model releases may not apply internationally...

[VidEdit]

"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.

Re:Virgin should pay them nothing

[Kadin2048]

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.

Re:Hmm

[kiddygrinder]

Except the laws for this kind of thing are different in australia, here, you don't need the subject's consent to use an image, you just need the copyright holder's permission, which in this case would be the photographer. I'd say they did indeed fuck up, but it's probably an honest mistake.

Re:Well --- Why Not??

[JavaManJim]

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".

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 /. discussion.
http://www.dallasnews.com/sharedcontent/dws/bus/ptech/stories/DN-suevirgin_21bus.ART.State.Edition1.35bdb09.html

Cheers, Jim

Its not the photographer's fault if he got permiss

[Anonymous Coward]

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....

Re:Why the License

[Walpurgiss]

The counselor is one of the parties seeking damages actually, so the current depth of his or her pockets is not in question.

Re:Flickr is not a stock photo repository.

[ZombieRoboNinja]

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.

IANAL, but here's what would seem to be the relevant disclaimer in the CC license:

UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND ONLY TO THE EXTENT OF ANY RIGHTS HELD IN THE LICENSED WORK BY THE LICENSOR. THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MARKETABILITY, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.

Re:CC gets out easy.

[Basje]

Requiring due dilligence largely makes CC's existence largely moot. Their right of existence is not the fact that they provide licenses, but the fact that they facilitate and automate communication about authors terms (making the work available without further need for communication). However, without any saveguards, this has no value to the receiver of the work: they still need to seek out all parties and get permissions them.

In my master's thesis about CC I concluded as much, among other traps.

You can't represent what you don't have with CC

[twoshortplanks]

The CC explicitly doesn't make any representations about rights you don't own. If you read the source you'll see:

Unless otherwise mutally agreed to by the parties in writing, licensor offers the work as-is and only to the extent of any rights held in the licensed work by the licensor. The licensor makes no representations or warranties of any kind concerning the work...

This is actually explained in the FAQ

Re:Its the girl's fault

[AEton]

The Creative Commons license in question does not suggest that the photo's subjects have abandoned their right of publicity.

This is pretty explicit.

Re:Why the License

[Anonymous Coward]

If Virgin choose to fight this, then a counter suit against the photographer for failing in their duty of care to get a model release while offering the photo to be licensed for commercial use will bring some serious pressure upon him.

This 'duty' doesn't exist for the photographer. It's always the responsibility of the final client to ensure that a model release exists. Just because the photograph in this case was free does not mean that Virgin / their advertising agency can suddenly forget about that.

Re:Why the License

[eggoeater]

Just how does that work? The photographer takes a picture, posts it on Flickr with a license that allows for commercial use. Once someone uses it commercially he/she sues the commercial user and the author of the license? IANAL, but there's a high-profile suite in my area that's just like this. The laws vary from state to state but the common factor is "commercial/advertising use".
In VA where I live, if you take a picture of someone and then use it in advertising or any other commercial use (other than reporting) then you MUST MUST MUST have written consent of anyone recognizable in the picture. Period.

So, regardless of the license the picture is published under, you must have consent depending on the state.

Re:Why the License

[zotz]

"I suspect this is will be the primary point of failure for the lawsuit. If Virgin choose to fight this, then a counter suit against the photographer for failing in their duty of care to get a model release while offering the photo to be licensed for commercial use will bring some serious pressure upon him."

I doubt it, unless it was a v1.0 license. That license made such assurances iirc. The current licenses specifically disclaim such.

http://creativecommons.org/licenses/by/3.0/us/legalcode

5. Representations, Warranties and Disclaimer

UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND ONLY TO THE EXTENT OF ANY RIGHTS HELD IN THE LICENSED WORK BY THE LICENSOR. THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MARKETABILITY, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.

Compared to the 1.0 license:

http://creativecommons.org/licenses/by/1.0/legalcode

5. Representations, Warranties and Disclaimer

      1. By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry:
                  1. Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;
                  2. The Work does not infringe the copyright, trademark, publicity rights, common law rights or any other right of any third party or constitute defamation, invasion of privacy or other tortious injury to any third party.
      2. EXCEPT AS EXPRESSLY STATED IN THIS LICENSE OR OTHERWISE AGREED IN WRITING OR REQUIRED BY APPLICABLE LAW, THE WORK IS LICENSED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING THE CONTENTS OR ACCURACY OF THE WORK.

So, unless Flickr was using the 1.0 license at the time?...

Oh, and this bit from the /. post:

"'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."

CC does not license sharing of Flickr photos... Flickr chooses to let people avail themselves of the CC licenses to license their own photos. Flickr doesn't license those photots and CC doesn't, the photographers do.

all the best,

drew

Re:This is "insightful"?!

[Svartalf]

In this case, I am afraid that the parties to blame would be Virgin and to a larger extent the
photographer. Virgin has an out- IF they did their due dilligence. In this case, since it's
not a stock photo agency (Sorry, CC doesn't absolve them of this requirement...) they should
have verified with the professional photographer that he had the model release. No psychic powers
needed there- they do it with other independent photographers- CC doesn't magically make it something
for Virgin and their Ad people to not do their checking. And, even if it does absolve them,
CC's not someone the people could sue- only the photographer is liable at that point.

The lawsuit, as it's framed is silly. They should be suing Virgin, their Ad agency if they used one,
and the photographer.

Re:Why the License

[Sen.NullProcPntr]

I didn't know this. You appear to be correct, here are a couple references.

Re:Why the License

[theophilosophilus]

Before there can be malpractice there has to be an attorney client relationship (or intended beneficiary). An attorney client relationship is measured by a "reasonable belief" standard. First, the only one that could possibly claim such a relationship is the person that took the photo and licensed it. However, any belief that there was an attorney client relationship is patently unreasonable. Creative Commons makes it explicitly clear by putting at the very top of the license (conspicuously):

CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN "AS-IS" BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.

The fact that someone uses some form contract/license they found on the web does not raise the specter of malpractice.

Re:RTFL

[jbengt]

As others have pointed out
Read the license
It states that the license does not imply a model release.

Re:Why the License

[nomadic]

Both of you have made the assumption that all lawyers are working at a medium to large size firm (where you do get paid $115K per year starting salary).

I was saying $115k average across ALL attorneys, whatever the level of experience, and whatever the organization. Some firms pay starting salaries of $220k a year for someone just out of law school; some people are making less than $100k after a 30 year career.

Regardless, the average salary for a 1st year associate in my small-town of York is probably $45K.

That demonstrates exactly the point I was trying to make.

Average salary means half are below and half are above.

Nah, average means adding them all up and dividing by the number. You're thinking of median.

Re:Why the License

[zippthorne]

Perhaps because the model in this case is an American citizen, and a minor at that.