Creative Commons (And Virgin) Sued For Teen's Photo Being Used In Ad Campaign

from the sue,-sue,-sue dept

Stack writes in to let us know that the family of a teenager in Texas has sued Creative Commons, Virgin Mobile Australia and Virgin Mobile USA because Virgin Mobile Australia happened to use a photo of the girl in an ad campaign in Australia. The photo had been taken by the girl's youth counselor, who posted it on Flickr, with a Creative Commons license saying the photo could be used with attribution (the ad apparently includes the Flickr URL, so it appears to be following the terms). There are some bizarre parts to the story. It's not clear why they're suing Creative Commons, since the photographer (who is apparently suing as well) chose the license in question. If he didn't want to have the photo used, he shouldn't have picked a CC license (or should have picked a more restrictive CC license). It's certainly ridiculous to then blame CC because the guy didn't know what kind of license he was choosing or how it could be used. In fact, the original photo is still using a CC Attribution 2.0 Generic license. You would think before suing the guy would have at least changed the license. It also doesn't make any sense that the family is suing Virgin Mobile USA. It's an entirely separate company from Virgin Mobile Australia. Also, the family says that they're quite upset because people can now "Google" their daughter. Yet, the ad doesn't have her name, and the photo was put online by the youth counselor, so it's not clear how they could be Googling the ad (and, of course, by suing, the family is only drawing a lot more attention to the ad). Finally, the family is complaining that this is defamatory and somehow insulting -- yet it's difficult to see how the ad can be construed as insulting. It's hard to see such a case getting very far -- though, it is interesting to see that Virgin Mobile was using CC Flickr photos in their ad campaign.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    scate, Sep 21st, 2007 @ 8:19am

    This is a weird suit, but it is complicated by the fact it took place under the laws of Australia, not the US and that it really is a "talent release" case not a copyright case.

    In the US, advertisers must not only have permission from the copyright holder but also a signed release from the **subject** or their parent or guardian. However, in the US photographers have been able to dispense with talent releases for candids they take outside the US because the invasion of privacy law that talent releases are based on only apply to US residents, though I'm not sure how thoroughly this has been tested. It is possible that Australia has the same attitude about talent releases.

     

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  2.  
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    Xslayer, Sep 21st, 2007 @ 8:38am

    Re:

    Well, whats the URL? Lets go see the picture and decide for ourselves what the merits are of this case.

    ...uh anyone know how to "google" this picture and why is it defamatory when it was taken by a youth counselor with permission from the family?

    XO

     

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  3.  
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    Shun, Sep 21st, 2007 @ 8:43am

    Talent/Model release

    Yeah, I see the problem here. The parents are suing Virgin Mobile USA, Creative Commons, and the photographer (I think). The problem is, the only one they can sue, legally, is the photographer, and not because of defamation, and all that.

    It's because he didn't get a "model release" from the subject (yeah, I know she has a name, but because she's a juvenile, I will decline to name her here). Good luck. Hope you get more modeling/acting jobs in the future. Oughta make your college entrance interviews creative, as well.

    Oh, and the photo was probably taken in Texas, unless the subject was let go on an international tour to wash cars for her youth group (dubious assumption at best).

     

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  4.  
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    Shun, Sep 21st, 2007 @ 9:03am

    OK, got it wrong in one

    Apparently, I don't know what I'm talking about. #1 got it right. Anyway, there's a discussion going on about this in flickr :

    http://www.flickr.com/groups/central/discuss/72157600541608353/

    I would bet that some ad exec is going to lose his head (and house, and car, and boat) over this. The lawsuits will probably just start piling in, now.

     

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  5.  
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    Anonymous Coward, Sep 21st, 2007 @ 9:05am

    Re: Re:

    Read the article, the links are there.
    links from the article:
    the original pic - http://flickr.com/photos/chewywong/467623403/
    the advertisement - http://flickr.com/photos/sesh00/515961023/

     

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  6.  
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    Kyle, Sep 21st, 2007 @ 9:21am

    does creative commons have any legal basis? I've never seen any laws or legal grounds for it to be any kind of legit license. from my understanding of it, some group just made it, and all of its "rights", up.

     

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  7.  
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    Marty (profile), Sep 21st, 2007 @ 9:31am

    Of course CC is

    The funny thing about CC is this: the CC license "rides" atop Copyright.

    Let's say you grab a CC-Licensed pic from Flickr to use for some purpose. You decide that you don't need to do as the CC License says, because you don't think it's "legal". Well, if the license isn't "legal", then the pic is still covered by US Copyright. In THAT case, you have absolutely no rights to do anything with the pic unless you get explicit permission from the owner!

    All the CC License says is, "If you use this , you must abide by the rules set forth in the license." Nothing "illegal" about that. If you choose to ignore the license, you still have to obey copyright.

     

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  8.  
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    Tim, Sep 21st, 2007 @ 9:41am

    Liability

    What a nasty web they got themselves into here....and just for the record IANAL.

    The way I followed along here, after some digging is this:

    1) The girl depicted in the poster in question, had a quick picture taken by a friend/acquaintance.

    2) The friend put the picture up on Flickr, under a CC Attribution license, which allows for commercial use (I don't know about you, but I don't normally ask my friends for a release before snapping a quick candid shot, so he didn't have the rights to use this license anyway)-- First OOPS in this ordeal.

    3) Some poor sap at an ad agency finds all these free pictures on Flickr with the Creative Commons licenses, and decides that this would save sooo much time and effort and uses them in his latest campaign; without checking for model releases on the photo subjects (even though the photographer has given a free commercial use license, that doesn't mean the subject signed a release....you know what they say about assumption)-- Second OOPS in this ordeal

    4) Virgin Australia likes the ads and gives the go ahead to produce all those posters to the aforementioned poor sap. (notice there is no OOPS in this one. When a large company hires an ad agency, it is generally up to the ad agency to decide how to go about creating the campaign. The primary client will normally give only general information on what they are looking for and leave the details up to the agency. Model releases are included in the details.)

    5) Someone thinks a poster crediting the Flickr photo, and the Creative Commons License is cool and tells the Flickr community about it, and in doing so, tells the photographer and the photo subject in the process.

    6) The Photographer decides he wants to try to get free stuff because his picture was used (even thou all he asked for in the license was attribution)-- this is just greed at work, the guy has already given away his right to do this, all he is truly entitled to is his name on the artwork somewhere.

    7) The girl finds out about the ad and feels insulted, her brother and her launch a legal assault against Creative Commons, Virgin Mobile Australia and Virgin Mobile USA.

    And at this point we find our selves back here.

    Now I don't think Virgin mobile has too much to worry about in this, nor Creative Commons, but the ad agency may be in hot water. And weather the girl wants to or not she will have to (I believe) sue her friend that took the picture and gave it an improper license in the first place. And if she wont sue him, I'm sure the ad agency will, for granting them (via the CC Attribution License) false rights to reuse his artwork/ her likeness in their commercial application.


    I think I'm done now.....WAKE UP!!!

     

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  9.  
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    SK, Sep 21st, 2007 @ 9:42am

    The photographer wants free stuff.....

    Check out the discussion where the subject is asking what CC is and the photographer (Chewywong) is asking if he will get free stuff. Dump Your Pen Friend

     

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  10.  
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    Anonymous Coward, Sep 21st, 2007 @ 9:58am

    If the family is lucky, this will bring in enough attention to start getting their daughter featured on sites like encyclopedia dramatica. As well as 7chan, 4chan, moid and the like.

     

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  11.  
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    yo ho ho...., Sep 21st, 2007 @ 10:07am

    Trailer trash...

    ... have found a way to "cash-in" on their daughter and hope to move out of the double-wide. Let's be serious, their suit is total BS. They could ask (and/or demand) for some payment -- but there is absolutely no defamation, injury, etc. Man, I hate these stupid abuses of the legal system. Ask for payment and license fee... and be grateful that somebody found your daughter attractive enough to use in a "non-sexual" promotion.

     

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  12.  
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    Matthew, Sep 21st, 2007 @ 10:09am

    I can see being insulted a bit

    FTA
    In the ad, Virgin Mobile printed one of its campaign slogans, "Dump your pen friend," over Alison's picture.

    The ad also says "Free text virgin to virgin" at the bottom.

    The dump your pen friend ad is seen here http://www.news.com.au/dailytelegraph/story/0,22049,22456867-5006003,00.html

    and to me seems to clearly make this girl out to be some sort of whacko with whom you wouldn't even write letters to. The virgin to virgin line is merely stigmatic in that no one wants to be the virgin after a certain age. If she's an avid church goer and true follower she would be proud of this, but again I see how it could be insulting.

    However, I don't see this as any thing more than a cash grab from the family.

     

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  13.  
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    Matthew, Sep 21st, 2007 @ 10:15am

    Re: I can see being insulted a bit

    whacko with whom you wouldn't even write letters to.
    I apologize for that sentence. =s

     

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  14.  
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    Anonymous Coward, Sep 21st, 2007 @ 10:35am

    Another crap lawsuit in hopes for a free ride in life... I wish all this crap could be thrown out before it even hit the system so we can get on with real cases! I would be honored to have someone use my picture for an add!

     

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  15.  
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    Anonymous Coward, Sep 21st, 2007 @ 10:59am

    Haven't seen the ad, don't care to. The only issue may be the use of a minor's photo without her parents permission, but I don't know the laws in Australia

     

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  16.  
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    Killer_Tofu (profile), Sep 21st, 2007 @ 11:00am

    The Sum Up

    In Post #8 - Liability.
    I believe Tim there summed it all up.
    And yah, in the discussion the photographer was even asking if he could get free stuff.
    Greed greed greed.
    This case deserves to be thrown out.

     

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  17.  
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    fourteenisa moron, Sep 21st, 2007 @ 11:01am

    @14, yeah, but you're probably a butt-ugly loser while she's cute.

     

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  18.  
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    Anonymous Coward, Sep 21st, 2007 @ 11:08am

    @17 what does that have anything to do with the crap lawsuit?

     

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  19.  
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    Mack, Sep 21st, 2007 @ 11:11am

    It's a truism of advertising that production costs are a rounding error in the budget for a typical campaign. It would have added next to nothing to Virgin's overall cost to just stage the pic again with an actual model.

    Just absolutely foolish on the part of the art director and the agency.

     

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  20.  
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    Anonymous Coward, Sep 21st, 2007 @ 11:14am

    Why would someones youth counsler post a picture on Flickr and did she have permission of the teenager to post it online or not i think should be the main question here. Because if the counsler did have permission then legally the family can't sue Virgin Mobile because she signed over the rights to use her photo even if she didnt realize what she was doing.

    Anyways I think shes pretty cute.

     

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  21.  
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    Paul, Sep 21st, 2007 @ 11:45am

    Facts

    I am amazed that so many people are so ready to state an opinion as fact. These URLs will go a long way toward explaining what the real issues may be. Scate (#1) may have gotten it right. Check the URLs to see why I say "may have"

    http://www.danheller.com/model-release-primer
    http://www.danheller.com/model-release.html# summary

     

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  22.  
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    Brad Leinhardt, Sep 21st, 2007 @ 11:48am

    who cares if he changes the license in preparation for litigation? when the photo was used and if it had the appropriate CC license then why would changing the license make any party more culpable? CC should still be left out of the suit entirely. ridiculous.

     

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  23.  
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    The Swiss Cheese Monster, Sep 21st, 2007 @ 12:31pm

    I'm worried about

    The young lady who's arm is being used without permission.

     

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  24.  
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    Todd., Sep 21st, 2007 @ 1:09pm

    I think they're mad because it says Free text "virgin to virgin."

     

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  25.  
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    Anonymous Coward, Sep 21st, 2007 @ 4:46pm

    Re:

    Yeah, bit like the ad agency and other corporations hoping for that "free" ride by not finding and paying for models/photos.

     

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  26.  
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    Kristy, Sep 21st, 2007 @ 5:36pm

    The photographer is the only one who can be sued

    If this girl wants to sue someone, she has to sue the photographer who took the photo and gave a license for it to be used for anyone else. She'll win that case, but is no hope of winning against Virgin Mobile or CC.

     

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  27.  
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    ozzie, Sep 21st, 2007 @ 7:58pm

    I'm pretty sure most of us would do the same if we were in the young girl's shoes. The ad is pretty insulting and she never gave permission for her image to be used. The guy who took the picture doesn't have much of a right to sue and shouldn't have given the photo that license when he didn't really have the right to but Virgin Mobile and whatever ad agency should have been a little more careful in using an image in a national ad campaign without checking to make sure everything was legit. I do agree that Creative Commons being sued is just weird.

     

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  28.  
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    Anonymous Coward, Sep 21st, 2007 @ 8:07pm

    honestly I feel like the photographer probably felt flattered (he did get credited in the ad) but the girl less so only because of the context of the ad. if it had been just a regular ad she might not have cared but this was kind of equivalent to someone using your image on a herpes ad or one of those "before" images in before/after campaigns. it's pretty derogatory. also australia has a history of being somewhat racist to asians (a large minority population there as opposed to in the states).

     

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  29.  
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    Wanderer, Sep 21st, 2007 @ 9:26pm

    There are only two legitimate lawsuits possible in this case:

    1) The subject vs. the photographer. He chose to permit people to use her photo for commercial purposes without her permission.

    2) The subject vs. the ad agency. They did not obtain a model release from the subject (if that is necessary in Australia) nor, apparently, perform due diligence in determining if one was required.

    If Virgin's contract with the ad agency is anything like my contracts with my clients when any potential copyright issues are involved, it states that it is the ad agency's duty to secure all necessary rights, and indemnifies Virgin if the ad agency fails to do so. That's what a company hires an ad agency for -- so they don't have to do all the work themselves. Therefore, Virgin Australia should not be liable.

    What in the name of all that's holy does Virgin USA have to do with any of this? They had nothing to do with the ad campaign, let alone the photo, in any way, shape or form. They're both owned by the same company, but they are separate from each other. Well, one simple answer: Deep pockets.

    And why, in the name of all that's holy, are they suing Creative Commons -- which is, fundamentally, a bunch of people who wrote up a few handy licenses for people to use if they want to offer other people the freedom to use their work -- anyway? I've rented apartments where my landlord used a stock rental contract from some book of do-it-yourself forms. If my landlord came into my place and took my TV, should I have sued the publisher that printed the book of forms? That's what this greedy, money-grabbing wanker is doing.

    Greed, greed, greed, greed.

     

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  30.  
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    Anonymous Coward, Sep 21st, 2007 @ 11:13pm

    The Creative Commons part of the suit is what kills me. I mean, I can understand some of the other people/things/etc that are getting sued here, if I try- but CC has nothing to do with this.
    While we're at it, I'm pissed at my school for giving me homework. I think I'll sue the paper company. (The correct response to this is "WHAT?")

     

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  31.  
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    Kristy, Sep 22nd, 2007 @ 7:46am

    #29 - Virgin USA and Virgin Australia are not owned by the same company. Virgin Mobile Australia is 100% owned by Optus. Virgin Mobile USA is owned by a joint-venture between the Virgin Group and Sprint Nextel.

    The Virgin Group has no ownership in Virgin Mobile Australia. They did when they first formed in 2000 when it was a joint venture between the Virgin Group and Optus, but in January 2006 Optus bought out the Virgin Group's share.

     

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  32.  
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    Jim, Sep 22nd, 2007 @ 11:09am

    Did anyone else notice that the advertisement uses a mirror-image of the original photo (at least in the links above)?

     

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  33.  
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    ChurchHatesTucker, Sep 22nd, 2007 @ 3:36pm

    Re:

    Did anyone else notice that the advertisement uses a mirror-image of the original photo (at least in the links above)?

    Yup. The license he chose didn't have a no-derivitive (sp?) clause, so that's cool too.

    And as far as I can tell, nobody has a case against anyone. Australia has no talent release law, so they can't sue Virgin Australia. CC doesn't give legal advice, which is even stated in the license, so no go there. Finally, the license does not state that a model release has beenn obtained, so the Photographer wasn't misrepresenting anything, and the subject couldn't even sue him, which she doesn't appear to be inclined to do anyway.

    The only one who's going to make any money here are the lawyers. Natch.

     

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  34.  
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    Penny, Sep 22nd, 2007 @ 3:40pm

    Re: CC License

    Under the Free Trade Agreement between Australia and the US, Americans have the right to sue Australians over violation of US intellectual rights laws, including talent release.

     

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  35.  
    identicon
    Penny, Sep 22nd, 2007 @ 3:49pm

    Re: Liability

    Actually there is also defamation in play here. Making a public statement about someone that isn't true is defamatory under Australian law and applies equally both here and in the US due to the bilateral Free Trade Agreement between both countries.

    There is strong conjecture that such a statement was made about this model. This is something in addition to the lack of consent granted when publishing the photo. As Virgin Mobile's name is publicly also on the advertisement, it is clear who is endorsing the statement, "drop your pen friend".

    This can be likened to where a staff member of a company makes a defamatory public statement on behalf of the company without that company's permission (although in this case it was granted). The company in this case can also be held to account, even though said statement was not officially endorsed.

     

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  36.  
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    Bianca Wirth, Sep 22nd, 2007 @ 3:56pm

    Re: Trailer trash...

    Clearly you aren't aware of the law. If you were then you wouldn't be making such statements...

    Fortunately the legal system is aware of what the law is, and therefore will be making a judgment in complete contradiction to your statements.

    Making a public derogatory statement about an individual is defamation. Under the auspices of the Free Trade Agreement between Australia and the USA, there is the right to sue over this between both countries.

    It has already happened, in 2002. Joseph Gutnick, a Melbourne (Australia) businessman, sued for defamation in Australia over an article published in the United States and posted on the Internet.

    Perhaps you should read and understand the law before you make comments in public forums such as this. After all, ignorance is no excuse in the eyes of the law if you commit an offense!

     

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  37.  
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    Penny, Sep 22nd, 2007 @ 4:01pm

    Re:

    Not entirely true. Under the Free Trade Agreement between Australia and the USA there is also defamation. Google "Joseph Gutnick verus Dow Jones & Co. (2002)" and you'll see that a precedent has already been established here. Law works off precedents!

     

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  38.  
    identicon
    Bianca Wirth, Sep 22nd, 2007 @ 4:06pm

    Re: Re:

    They do have the right to sue for defamation, under auspices of the Free Trade Agreement between Australia and the USA.

    Joseph Gutnick, an Australian businessman, did this against Dow Jones & Co. in 2002 (ie a precedent was established then for the case that is being discussed here).

    Defamation occurs when the following has occurred:
    * A statement about an individual is made publicly.
    * It is derogatory.
    * It factually incorrect.

    Therefore under law (which is unemotional unlike many of the comments made here), the subject of the photograph does have the right to sue an Australian company.

     

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  39.  
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    Bianca Wirth, Sep 22nd, 2007 @ 4:10pm

    Re: Re: Re:

    For more information about the precedent that was established, see http://www.iael.org/publications/IAEL_article_Gibson.pdf.

     

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  40.  
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    ChurchHatesTucker, Sep 22nd, 2007 @ 10:20pm

    Re: Re: Re:

    Defamation occurs when the following has occurred:

    • A statement about an individual is made publicly.
    • It is derogatory.
    • It factually incorrect.

    Well, then she may have standing then, but I'm curious to what her argument is going to be. She's not a virgin?

     

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  41.  
    identicon
    Seun Osewa, Sep 23rd, 2007 @ 9:27pm

    They Can Only Sue The Photographer

    Poster number 3 got it right; only the photographer has done something wrong. He posted a picture online without the subject's permission and granted the world the right to use it!

     

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  42.  
    identicon
    Alfie Dennen, Sep 24th, 2007 @ 8:03am

    CC, photographers rights, subject rights and Austr

    I originally saw this covered quite some time ago:

    virgin mobile aus. in the wrong

    and this was my response, I think it still holds true: think there are two issues here to look at.

    Firstly there is the issue of personality/individual image rights. In Australia, there are no explicit rights of publicity or personality, so in the case of Alison, since her image was not captured in a group or public place/beach, she likely has no model or other rights as the subject of the image. However, since she was a minor (at 15), there is some evidence that her image rights are protected by law, as any photography of a minor must have had prior authorisation by the parent(s).

    The next, and integral element is the creative commons license applied in this case. You say that an Attribution CC license was used. There are only a couple of CC licenses that may be used commercially with Attribution, so it seems likely that an Attribution No Derivatives (by-nd) license was used. If this is the case, then the photographer has implicity given anyone the right to use the image in any way, as long as there are no derivatives, and that they are credited at the publishing point.

    The interesting thing here is that Virgin would not be liable (imo) for the use of a minor in their campaign, as that responsibility defaults to the photographer.

    All in all, photography rights are a mess all over the world, especially since the advent of the digital camera, but in this case, because it seems that the only "wrong-doing" is that the image was of a minor and perhaps permission wasn't obtained from the parent, the only liable person here is the photographer.

     

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  43.  
    identicon
    Question, Sep 24th, 2007 @ 5:55pm

    So...

    Why can't Virgin afford to pay a model for their ad campaigns again?

     

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  44.  
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    Anonymous Coward, Sep 27th, 2007 @ 1:25pm

    This all stupid, try yto get easy money

     

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  45.  
    identicon
    l, Sep 27th, 2007 @ 6:31pm

    A few points to think about:

    * attribution of the creator does not require notification of the creator- the ad makes it very easy to find the source of the photo

    * choosing a license that does not explicitly bar commercial use does not mean that the creator is explicitly granting the right to commercial use, that is chewy didn't say "anyone can use the photo for commercial purposes" he just didn't say that you can't

    * suing creative commons for creating a license that voluntarily allows others to use content you create makes no sense, especially given the terms in the license that does explicitly state that you can't hold creative commons liable if you don't do your due diligence

    * creative commons allows a creator to retain copyright while allowing people to use their materials to a certain extent

    * if the picture had been licensed under the "share alike" license (there are many creative commons licenses), then anything Virgin put the picture on would be freely available for others to copy and reuse

    * My conclusion (given that IANAL but am faily well versed in CC and the basics of copyright)? I would say that the photographer is partially liable, not for making the picture commercially available, but for putting her picture up on the web without permission from her family. Even if the picture was published with a default full copyright, he could still be liable for publishing it without her permission. The other half of the liability belongs to Virgin for also using her image without her permission. Virgin is not liable to the photographer, since he gave them permission to use the photo. Both Virgin and the photographer are liable to the girl and her family for both using her photo without permission. Neither Creative Commons nor Flickr is liable to anyone.

     

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