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.'"
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?
Pix or it didn't happen.
$8.95/mo web hosting
for not acquiring a model release before putting his image out for commercial use. Both the girl and Virgin could sue the photographer.
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.
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.
-3Suns
~~~~
The Revolution will be Slashdotted
If I understand it right (I glanced over the article itself [Yes, I blasphemize!]), but it looks like the photographer chose to do this on his own without asking the family. He took a picture at a summer camp, and used it later, they say they had nothing to do with agreeing to it.
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.
I definitely do not agree. Virgin need the release to use the photograph - not the photographer himself. He has not used it for commercial purposes because he was not paid by Flickr. However, Virgin have used it and they should have ensured that they have permission to do so. This is usually done by the photographer because he has contact with the model, but there is no legal obligation upon him to do so if he does not have any intent to use the photograph commercially. This is why it is in the model's interest to make sure that a MR is agreed and it also provides additional protection to the photographer but it is still not legally required of the photographer to do so if he does not use the images commercially.
Have a look at soylentnews.org for a different view
I don't think so. They used what basically amounted to a stock photo according to its license. Were they supposed to personally vet all parties involved? Do you personally vet everyone in stock photos you use? Or audit all the software on your machine to ensure that the people who licensed it to you really had permission to do so?
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.
Dewey, what part of this looks like authorities should be involved?
"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.
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.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
Since they're the ones using it commercially, and the photographer had no commercial intentions. (which would be separate from copyrights that creative commons allow.)
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.
"dump your pen friend" "free text virgin to virgin".
;).
Uh she's a young female teen.
I don't see how it's derogatory that she is being associated with being a virgin. "A lot of her church friends saw it".
Derogatory in this context would be "free text slut to slut".
As for "dump your pen friend", as far as I know, teens nowadays don't have pen friends - they use IM and SMS/"text", so that's true too.
She should be compensated though, not for being insulted, but for whatever the usual photo model gets for that sort of thing.
Now if someone put an image of a 40 year old slashdotter and used that same taglines it would be naughtier, maybe even funnier
Great new pet name for genitalia.
OSGGFG - Open Source Gamers Guide to Free Games
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.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
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".
/. discussion.
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
http://www.dallasnews.com/sharedcontent/dws/bus/ptech/stories/DN-suevirgin_21bus.ART.State.Edition1.35bdb09.html
Cheers, Jim
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....
The contract with the photographer was the CC license that granted them the right to use it in a commercial setting provided they attributed him. The photographer clicked to allow the license most likely without understanding what he was doing, and the legal consequences of his action. If the court finds Virgin liable, then they are opening a huge legal issue in regard to all non-signed contract licenses, including the GPL.
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.
the pun is mightier than the sword
The CC explicitly doesn't make any representations about rights you don't own. If you read the source you'll see:
This is actually explained in the FAQ
-- Sorry, I can't think of anything funny to say here.
The Creative Commons license in question does not suggest that the photo's subjects have abandoned their right of publicity.
This is pretty explicit.
We recently had heard in the office over one of the Yellow Machine that's made by Anthology Solutions.
--insert masturbation joke here--
I see even classic Slashdot is now pretty much unusable on dial up anymore.
the Japanese have definitely forgotten this belief...
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.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
This is a first amendment issue. A google image search for "kids" returns 67,400,000 results. Can you give an example of the law which makes this illegal? I'm sure there are not model releases for each photo. Should Google pull all those "illegal" images from their search results?
I've photographed kids and put their photos on the web, as have about a million other people. Publishing on the web is a limited "giving away", but it does not mean I'm entering a contract to license the photo for all conveivable use to anyone who swipes it.
Food for thought:
In the US, most laws related to model releases are case law, there is unfortunately no legislation that outlines when a release is needed and what it should say. A model release valid in California may not work in New York, much less Australia. Even then, certain uses (such as "sensitive subjects") require a different model release. It's way too complicated to just say "all web publication of photos of children is illegal".
If you respect other people's first amendment rights, you will start out assuming people have a right to publish/speak, and then very narrowly carve out limited exceptions where there is clear law. If you want your image to remain private, the Restatement of Torts (Second) says it's NOT private:
www.cgstock.com
As others have pointed out
Read the license
It states that the license does not imply a model release.