Slashdot Mirror
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.'"
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.
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The reason why we lawyers get "rich" (I wish!) is because people make the assumption that they know what the laws is and what the consequences are.
This was a resolvable problem with a 5 minute phone call from Virgin Marketing to Virgin Legal, except that some dumb ass thought he "knew the law". Any third-year law student could tell you that you can't just pull a photo off somebody's personal, non-commercial web page without finding out who was in the photo and getting a name and likeness release. That has nothing to do with the copyright on the photo itself... it could have been released into the public domain and you would still need that release from the subject in the photo.
Part of the argument for suing CC at least with respect to the license it "wrote" for the photographer is that CC fails to warn its "client" that the license doesn't consider privacy issues for the subjects in the photo. Of course, I could also say that using a website to draft you a license instead of paying me is why you got here in the first place. Nobody at CC even looks at the photo before it writes the license. For me, that's malpractice, pure and simple... the argument that CC should be held to that standard of care is compelling.
The "any license but free" crowd on Slashdot has missed the point again. Half the posters on this story think this is a copyright issues... it is NOT. It is a duty of care and privacy issue. Clearly, half the people also read the Slashdot story, but not the linked story. I am not a father, but if some company plastered my 16 y.o. daughter's picture all over TV, billboards, newspapers and the internet with a caption "Free Text Virgin to Virgin," there would be no end to my wrath.
The license is a copyright license for the photographer.
The photographer does not have the ability to give away the model's rights without something in writing from the model, and the photographer never pretended to have that. 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? Um, because they are the guilty parties. She apparently does not have a problem with the photographer taking the picture and putting it on Flickr. What she has a problem with is her picture being used to sell mobile phones. Normally, someone would get paid some money to have their picture used for this purpose. But apparently Virgin Mobile decided to go the cheap route, and it may turn out to be costlier in the long run. 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. One might argue (and many might agree) that having your picture used in a national advertising campaign is a far more egregious violation of privacy than having your picture on a website mixed in with a lot of other pictures that only people who choose to look (your friends and anyone else who was there) are likely to see. 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? There are a lot of ways it could be taken. But it seems to be a comment on her appearance, just as the other ads show people who one could believe were virgins, based on their appearance. 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 Even if he intended to release the picture under that license (which it seems he is saying he did not), that was only the copyright license. The rights of the model are a completely different issue. By releasing it under that license, he did not provide any warranty that the model had released her rights.
Virgin Mobile has lawyers that know how this stuff works. Maybe they think that by using American photos in an Australian campaign, they can avoid problems because, (a) the subjects are less likely to discover that their likeness has been used in another country, and (b) if they do discover it, they will have to sue Virgin Mobile in Australia, since VM's Australian corporate entity probably has no presence in the US.