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

[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

[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: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.

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: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

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: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

[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:Why the License

[Sen.NullProcPntr]

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