Turns Out You Can't Sue Creative Commons Because You Didn't Understand The CC License

from the still-cost-$15k dept

A few months ago we wrote about a somewhat bizarre lawsuit where the family of a teenager sued Creative Commons after a photo of the girl was used in an ad campaign by Virgin Mobile Australia. The details were a bit strange, and it appeared that the family (and its lawyer) were a bit confused themselves, leading them to sue parties that were not responsible at all. What happened was that a youth group counselor had taken a photo of the girl and posted it to Flickr with a Attribution 2.0 license -- meaning that anyone could use it, even for commercial purposes, so long as they gave credit for who took the photo. Virgin Mobile Australia then went and used the photo and others (with attribution) in a poster campaign for its mobile phone service. The girl later discovered all this when someone in Australia spotted the ad campaign with the Flickr URLs on the poster, and thought it was interesting enough to take a photo of the ad and put that up on Flickr. Her family then felt that she was being taken advantage of and found a lawyer who sued Virgin Mobile Australia, Virgin Mobile USA and Creative Commons. It's a stretch to think that even Virgin Mobile Australia has done anything wrong here (it followed the terms of the CC license), but there is simply no rationale for suing Virgin Mobile USA (a totally unrelated company to VMA) or Creative Commons. After all, Creative Commons hadn't done anything here other than exist.

If anything, the family could sue the photographer for posting the girl's photo with a CC license without permission -- but, instead, the family included the photographer as a plaintiff in the lawsuit. So, basically, they were suing CC because the photographer didn't understand the license he had chosen and he felt he deserved some money for his own misunderstanding as well. Thankfully, the family and its lawyer seem to have finally (after the fact) taken the time to realize that Creative Commons and Virgin Mobile USA have nothing to do with this lawsuit and have withdrawn the suit on those two firms (I assume the case against Virgin Mobile Australia will still continue). Unfortunately, however, their inability to figure this out before the lawsuit ended up costing Creative Commons approximately $15,000.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    ChurchHatesTucker, Nov 29th, 2007 @ 6:30am

    Jurisdiction

    IANAL, but I've been following this case with some interest.

    The most important point is that the CC license covers the photographer's work, and not anything due to the model (subject.) This was an oversight in the 1.0 version, but it was corrected in the 2.0 version, which I believe is the version he chose.

    Australia seems to have a couple laws about using images commercially and photographing children, but it's pretty confusing (especially from this side of the pond.) It does sound like they have a case THERE.

    Lastly, all the alleged infringement happened in Australia, so why this was even entertained in a US court is beyond me.

     

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  2.  
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    Anonymous Coward, Nov 29th, 2007 @ 7:14am

    hmm

    I'm all for fair use and all, but no company should be allowed to use someone's photo in an advertisement without there permission regardless of how it was attained. They should have contacted the photographer and person in question before using it. What? they can't afford to hire a photographer and model? It just doesn't seem right.

     

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  3.  
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    Killer_Tofu (profile), Nov 29th, 2007 @ 7:34am

    Re AC # 2

    They did have the photographers permission. Its all in the CC License. Your argument in this context and thread / topic just doesn't seem right.

     

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  4.  
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    atomatom, Nov 29th, 2007 @ 7:43am

    Virgin obviously did nothing wrong by the CC license, but they failed to get a model release. I'm pretty sure they're required to obtain one by Australian law, so I don't understand why the girl wouldn't sue on those grounds. On the other hand, if the photographer is required to have one, he could be sued. Nothing wrong with the way they used the picture under license, obviously, but the subject of the photo needs to be aware and willing to be used in stock photography.

     

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  5.  
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    Ben (profile), Nov 29th, 2007 @ 7:58am

    The Photographer was a Plaintiff?

    I just don't understand how the photographer is a plaintiff in this case. He should be the one being sued. He had no right to claim his photograph(s) were available under CC 2.0 unless he had a release form from the "models". Perhaps Flikr should have been sued for not requiring more documentation for submission images under CC 2.0.

    What I find really annoying is that the plaintiffs aren't on the hook to cover CC's court costs -- _they_ decided to sue two entities (VMUSA and CC) and then later drop them from the suit. One of the consequences of dropping the suit should be to cover reasonable court costs for the defendants to that point (and certainly all the court costs if their suit is found to be without merit).

    There should be consequences for suing people without having a sound reason for doing so. It should have been their lawyer's job to tell them there was no reason to sue CC / VMUSA.

     

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  6.  
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    InkChemist, Nov 29th, 2007 @ 8:16am

    Re: The Photographer was a Plaintiff?

    I agree. The photographer is the most responsible party and should be the only defendant.

    CC should counter-sue the plaintiffs to recover their $15,000 and another $45,000 (treble)on top of that.

     

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  7.  
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    Mystified, Nov 29th, 2007 @ 8:20am

    Re: Jurisdiction

    If the plaintiff is an American, then the case could logically be heard in the US.

    Now, answer me this. A person dies in a traffic accident in Canada. I believe the driver is a Canadian. Yet the wrongful death suit is being tried in the US under Canadian laws and rules. WTF is up with that?

     

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  8.  
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    Anonymous Coward, Nov 29th, 2007 @ 8:30am

    I think Virgin Mobile Australia is the only one to be held accountable here.

    As someone else said, just because a photographer has no desire to be paid for use of his/her images does not mean that the commercial user of the image is no longer required to ensure that the photo is properly model released.

    The family of the girl could also sue the photographer for not obtaining a release and they would be successful IF the photographer indicated to Virgin Mobile Australia that the photo was model released, or if a court decided that due to the way it was presented to Virgin Mobile Australia they would have assumed such. Because it was put up with that CC license one MIGHT assume that the photographer has taken care of releases, but I think you'd be a fool not to chack up on it. Most Flickr users don't even know such things exist.

    Personally I think that any corporation looking for freebies on Flickr ought to be doubly careful to make sure that there is a release for every image they use of a person.

     

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  9.  
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    Anonymous Coward, Nov 29th, 2007 @ 8:46am

    Agree fully with #8 Anonymous Coward.

     

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  10.  
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    Ven'Tatsu, Nov 29th, 2007 @ 9:50am

    Re: Re: The Photographer was a Plaintiff?

    The bad press for CC suing for their costs would probably out way the $15,000 they lost in the first place. It would be very easy for the media to make out the family as the victims.

    I agree that CC should not be out $15,000 but at this point I think their best option is to cut and run. They got out cheap relative to what Virgin Mobile Australia will probably have to pay in the end no matter who wins the suit.

     

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  11.  
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    ipanema, Nov 29th, 2007 @ 10:13am

    the only one to be punished here is the photographer for publishing that photograph. if the CC license applied to that photo in question is as mentioned above, anyone can grab that for as long as one properly acknowledge the source.

     

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  12.  
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    ipanema, Nov 29th, 2007 @ 10:14am

    the only one to be punished here is the photographer for publishing that photograph. if the CC license applied to that photo in question is as mentioned above, anyone can grab that for as long as one properly acknowledge the source.

     

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  13.  
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    JustMe, Nov 29th, 2007 @ 10:14am

    Re: InkChemist

    Thanks you SO much for properly using 'treble.' It drives me batty when people use 'triple' to mean 3x. It just doesn't sound right, even though it is much more common.

    Seriously, no snark here, heartfelt thanks only.

     

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  14.  
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    Mike (profile), Nov 29th, 2007 @ 10:29am

    Re:

    As someone else said, just because a photographer has no desire to be paid for use of his/her images does not mean that the commercial user of the image is no longer required

    The CC license the photographer used clearly states that it's ok to use the photo for commercial purposes. So, it's not about him saying "I don't want to be paid." The purpose of the CC license is so that you DON'T have to go ask for permission, that permission is already granted.

     

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  15.  
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    Brad, Nov 29th, 2007 @ 11:07am

    Re: hmm

    This isn't even close to "fair use" - the license on the specific work explicitly said it was free to use - without gaining permission - for commercial purposes.

    As a hobby photographer, I have put much of my work up as CC-Attribute. If it shows up in an advertisement, that's exactly what that license is for - they get cheap images, I get free publicity. T-Mobile AUS followed the license to the letter, and these people are complaining because 1) this councilor published pictures of kids online and gave them a license he didn't have the right to use, and 2) they want free money.

    Forget them, I hope this lawyer costs them plenty.

     

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  16.  
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    ChurchHatesTucker, Nov 29th, 2007 @ 12:06pm

    Re: Mike

    The CC licenses ONLY apply to the rights that are normally conferred to the artist, in this case the photographer. The model appears to have separate rights under Australian law (this is not the case in all jurisdictions) but the CC license doesn't apply to her.

    The confusion appears to be because professional photographers typically secure the release rights before selling a picture, if it is required. Non-commercial uses don't typically require model releases (thankfully) so, unsurprisingly, amateurs do not obtain them. To expect that they have is a massive oversight for a major company like VM AUS (or their ad company) to make.

     

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  17.  
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    Clueby4, Nov 29th, 2007 @ 2:12pm

    Model Release - WTF you ain't that pretty!

    STFU about the pedantic model release, anyone flapping about it is projecting their inner "Paris Hilton". No one is going to pay for your picture so get over yourself.

    What happened to responsibility. Your opportunity to whine and squirt tears occurs when the photographer is taking the picture. Not after some elaborate facebook/flicker/CC entrapment scam.

     

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  18.  
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    Anonymous Coward, Nov 29th, 2007 @ 2:38pm

    "STFU about the pedantic model release, anyone flapping about it is projecting their inner "Paris Hilton". No one is going to pay for your picture so get over yourself."

    "Model release" doesn't mean model like fashion model. It means an agreement that the subject signs that allows the photograph to be used in circumstances not normally provided for under journalistic/public etc photography law. Model releases are required by law in order to use a photograph of someone to advertise your product. Obtaining the release is the responsibility of the publisher, NOT the photographer. In this instance it is Virgin that is culpable for not obtaining the release.

     

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  19.  
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    joe harrington, Dec 1st, 2007 @ 6:30pm

    Creative Commons Lawsuit (Virgin)

    It's an interesting case. Responsibility is definitely on the photographer and Flickr (possibly) who posted the licensing choice, if in a cryptic way. BUT, if this were a music licensing case (one i'm familiar with) then the law from what i understand, states that if you use something and you don't have the signature and authorization of the actual person who holds the copyright, including things like the musician's or 'model' in this case - release forms, then you can still sue the (Virgin) company who uses the media. "not knowing any better" according to the references to the law, are no excuse, from what i'm aware of.

    So, what Virgin SHOULD HAVE done (or whoever uses the image) is contact the poster of the image, and get the actual signature 'model release' form from the girl, and also the confirmation of usage from the photographer, and have it on file. otherwise, 'not knowing that the CC license wasn't intended' is the responsibility of Virgin, it seems to me.

    If this were a piece of music used in a nation wide ad, even if the ad agency 'thought' the piece was 'cleared' they are still responsible. that is why trust with the licensing agency, or musician is very important to the ad agency, becuase they have to TRUST that they are being told the truth about how it's 'clear to use'. otherwise, they get their butts sued. The same should go for an image.

     

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  20.  
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    Joe Harrington, Dec 1st, 2007 @ 6:38pm

    PS - (regarding Virgin Lawsuit)

    PS - Come on, people - how can you sue a body of text? that is rediculous. That is like saying, "Hey, i have this lawyer who drew up a contract for me, and well, i either didn't read it or i don't understand it, and so, i'm just going to sign it anyway". ok, if you have a lawyer, you might trust them to 'cover your back". but to try to sue CC makes no sense. CC is just someone who wrote up some text - kind of like a contract template that might be useful to people. So, if you read it, and find it does not meet your needs, or does not protect your work, then you either don't agree, or you modify the content of the agreement. It's just a template contract that someone else wrote, and you are free to also use it, if it fits your needs. if you can't read or understand it, then get help. if you TRUST it to cover your needs, you may be naive.

    In any case, Virgin should be sued for an amount that a model would make for the image, based on how long it will be used, and the other aspects of the ad(s), plus some, to discourage this. If they were sued, they would probably simply settle. the photographer should be sued for being naive and stupid, perhaps, or mayby Flickr for not providing a copy of the actual license (which they prob. do by using a link to CC).

    I say, sue Virgin. they targeted an unsuspecting person (the girl) to take advantage of. the bastards.

     

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