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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?
No, as others have pointed out it's not the girl's fault but the photographer. Letting someone take a photo of you doesn't (usually) imply that they have gotten your permission to use your image commercially. They have the copyright to the image, but you still have some control over how your image is used.
... but he put it up under a license that he really didn't have permission to use. In effect, it's like he sold something that he didn't rightfully own.
This is why when a photographer takes pictures for stock collections, in addition to the copyright to the photo, they also need to show that they had a model release from anyone in the photo (at least those people who can be identified).
In this case, the photographer took a picture and put the picture on Flickr
So the girl definitely has a case against the photographer, and could probably get some money out of Virgin (perhaps for not performing due diligence after grabbing the photo from Flickr, when anyone with a brain should have realized that ripping some photos from the web and dumping them into your ad campaign without checking up on them first is a bad idea), but I think the CC people are reasonably safe. They'll probably end up spending a few grand in lawyers' fees, but that's the cost of breathing these days.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
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....
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.
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.
Except that by putting it up under a license which would clearly allow exactly the use Virgin made of it, the photographer's representing that he does have the right to grant that license for that use. Virgin accepted that in good faith, they'd no obvious reason to believe he didn't. My guess is that the photographer will be found to be primarily liable, with Virgin possibly held liable for actual damages due to their use and probably enjoined from using the photograph in the future but no more than that. Creative Commons will move to be removed from the suit and they'll get that. Since the family didn't name the photographer in their suit, they're likely to end up holding the bag for a big legal bill and a very small award unless their lawyer convinces them to shift their target fairly quickly.
Yes as I have been thinking about it more I'm starting to come around more to your line of reasoning.
It really depends on how you interpret the CC licenses that don't prohibit commercial use. I could see a fair argument that by putting a photo on the Internet with such a license, you are effectively saying that anyone can use it for a commercial purpose. This would put the photographer at fault.
However, I think the response to that (and one which as I've thought about it a bit more, I agree with) is that simply putting a photo up with a license that doesn't prohibit commercial use, does not mean that all commercial use is OK: it doesn't indemnify the downstream users of the photo, in other words, nor does it make any representations about the legal status of the photo, except regarding the photographer's copyright claim.
That's the real crux: by putting the photo under the CC license, was the photographer making a representation about how the photo could be used? Or was he only waiving his own copyright? I'm convinced now of the latter, but in front of a judge, I think it could easily go to the person with the better lawyers.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
Suing the people who made the effing license? I hope they get stomped in court like the insects they are.
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.
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.
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