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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?
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.
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.
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....
"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.
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.
This is a joke. I am joking. Joke joke joke.
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.
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."
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