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

Why the License

[Adradis]

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?

Re:Why the License

[azenpunk]

then why isn't she suing the photographer who submitted the image to the photograph and through negligence selected the license that allowed this to happen?

why is she only suing the involved parties who are corporations, including the only party in this whole debacle that has shit loads of cash?

the invasion of privacy happened when the image was submitted to flickr, not when it was used according to its license in an ad campaign.

how is the slogan 'virgin to virgin' derogatory to a faithful churchgoing 16 year old? aren't girls like that supposed to be proud to be virgins?

the only party i can see that has any fault is the party who put the image on flickr, the only party too poor to get any cash out of

Re:Virgin should pay them nothing

[timmarhy]

err, a summer camp is a private function, not public. And she is underage, in which case she can't sign a release to begin with, or give permission to have her photo taken.

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.

Virgin is not innocent

[michaelmalak]

If some stranger takes a picture of me on the street without my explicit knowledge and posts it to Flickr with a Creative Commons license, would Virgin be allowed to use that image in an ad?

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.

Re:Its the girl's fault

[Kadin2048]

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.