Texas Family 'Sues Creative Commons' 524
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 the License (Score:5, Insightful)
Re:Why the License (Score:5, Informative)
Re:Why the License (Score:5, Insightful)
And I'm guessing Creative Commons and Virgin Mobile have somewhat deeper pockets than the camp counselor who posted the image.
Re:Why the License (Score:5, Informative)
Re:Why the License (Score:5, Interesting)
Just how does that work? The photographer takes a picture, posts it on Flickr with a license that allows for commercial use. Once someone uses it commercially he/she sues the commercial user and the author of the license?
Maybe there should be a "3) Profit" in there as well?
Re:Why the License (Score:5, Insightful)
Re:Why the License (Score:5, Informative)
Re:Why the License (Score:5, Informative)
Re: (Score:3, Informative)
Re:Why the License (Score:5, Informative)
I doubt it, unless it was a v1.0 license. That license made such assurances iirc. The current licenses specifically disclaim such.
http://creativecommons.org/licenses/by/3.0/us/legalcode [creativecommons.org]
5. Representations, Warranties and Disclaimer
UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND ONLY TO THE EXTENT OF ANY RIGHTS HELD IN THE LICENSED WORK BY THE LICENSOR. THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MARKETABILITY, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.
Compared to the 1.0 license:
http://creativecommons.org/licenses/by/1.0/legalcode [creativecommons.org]
5. Representations, Warranties and Disclaimer
1. By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry:
1. Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;
2. The Work does not infringe the copyright, trademark, publicity rights, common law rights or any other right of any third party or constitute defamation, invasion of privacy or other tortious injury to any third party.
2. EXCEPT AS EXPRESSLY STATED IN THIS LICENSE OR OTHERWISE AGREED IN WRITING OR REQUIRED BY APPLICABLE LAW, THE WORK IS LICENSED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING THE CONTENTS OR ACCURACY OF THE WORK.
So, unless Flickr was using the 1.0 license at the time?...
Oh, and this bit from the
"'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."
CC does not license sharing of Flickr photos... Flickr chooses to let people avail themselves of the CC licenses to license their own photos. Flickr doesn't license those photots and CC doesn't, the photographers do.
all the best,
drew
Re:Why the License (Score:4, Insightful)
Re: (Score:3, Insightful)
Re:Why the License (Score:4, Insightful)
Re:Why the License (Score:4, Interesting)
The incident happened in the context of a church. The counsellor was likely a volunteer at a church youth group. He probably posted the photos on Flickr for the rest of the youth group to view, and didn't pay enough attention to the ramifications of the license. It isn't much different than somebody posting pictures on flickr of times they were hanging out with their friends. Sure, it wasn't smart on his part, but I wouldn't think it is THAT unusual.
The article says:
The family of Alison Chang says Virgin Mobile grabbed the picture from Flickr, Yahoo Inc's popular photo-sharing website, and failed to credit the photographer by name.
and The ad also says "Free text virgin to virgin" at the bottom.
The experience damaged Alison's reputation and exposed her to ridicule from her peers and scrutiny from people who can now Google her, the family said in the lawsuit.
"It's the tag line; it's derogatory," said Damon Chang, 27. "A lot of her church friends saw it."
I think Virgin needs to be more careful how it advertises with the name that it has. The article title was "Virgin sued for using teen's photo". Taken out of context, what does that mean?
I'm not sure in the end the photographer or the teen have a lot to stand on legally, but I really think that on some level Virgin has to think more about how their use of photographs are going to affect the subjects.
Re:Why the License (Score:4, Funny)
Wait a minute. It's derogatory to call a minor a virgin? Is it also derogatory to call her a slut? /me is confused.
Re: (Score:3, Insightful)
Re:Why the License (Score:4, Insightful)
By far, the hardest part of the book is obtaining signed permissions form owners of the areas that I've taken screenshots of. We'll ignore the obvious "ownership" questions and even the harder "who is the owner" questions.
What remains is that a signed paper trail is needed for someone to say "hey, I have the right to let you distribute this."
The writing the words part was easy.
I wouldn't want to be the photographer.
Re:Why the License (Score:4, Informative)
In VA where I live, if you take a picture of someone and then use it in advertising or any other commercial use (other than reporting) then you MUST MUST MUST have written consent of anyone recognizable in the picture. Period.
So, regardless of the license the picture is published under, you must have consent depending on the state.
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Re:Why the License (Score:5, Insightful)
Re:Why the License (Score:5, Funny)
Re:Why the License (Score:5, Funny)
Re:Why the License (Score:5, Interesting)
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.
Re:Why the License (Score:4, Insightful)
Re: (Score:3, Informative)
CREATIVE COM
Re:Why the License (Score:4, Interesting)
My example is that I am engaging in malpractice if I draft a license without even looking at the work in question. Malpractice is a term people associate with doctors and lawyers, but it is just another word for negligence. CC is not exempt from the requirement to use due care in the provision of a service (drafting licenses), regardless of whether it is done for profit or not. It is the same question you ask yourself with a basement full of water after the plumber makes a repair - Did he use reasonable care in fixing the pipes in my house?
The Creative Commons website is not someone randomly pulling a "form contract" and using it as you state. Creative Commons website asks the user questions about what he or she wants in a license as surely as I would were that person sitting in my office. Then, Creative Commons generates a license to fit the person's apparent need. I am not saying it is a slam-dunk case... I am just saying it is a compelling argument as to their liability in this case.
In light of the disclaimer you posted from CC's website, your post also brings up the issue of whether CC is engaging in unauthorized practice of law. Yeah, yeah, they say they are not a "law firm" but they are (arguably) providing legal services with the way they website is designed. Whether they are liable or not in the "Virgin" case, they can be held accountable for the provision of legal services without a lawyer ever looking at the finished product.
Re:Why the License (Score:5, Insightful)
They're not providing legal services to clients any more than I am by posting on Slashdot.
Re:Why the License (Score:4, Insightful)
The reason you put "rich" in quotes is probably be cause you're a scrupulous lawyer. The other alternative (but judging by the content of your post, this isn't the case) is that you're a bad lawyer. All the rest of them get rich.
See, you're trying to help people navigate the law safely by doing the right thing... If you want to get rich, you have to be one of those lawyers that helps their clients get away with whatever they possibly can manage, helps clients file outrageous lawsuits, or manages class-actions in a way that funnels money away from people who don't realize they had any rights at all into your pockets.
I've had need to seek the services of a lawyer on several occasions, and it has always been the case that the good lawyers that you seek out before you have a problem are the ones that charge the least. In many cases they charge less that I would consider a fair wage. (So far, bad IP lawyers are the most expensive I've come across. Luckily they're not all bad...)
Re: (Score:3, Informative)
I was saying $115k average across ALL attorneys, whatever the level of experience, and whatever the organization. Some firms pay starting salaries of $220k a year for someone just out of law school; some people are making less than $100k after a 30 year career.
Regardless, the average salary for a 1st year associate in my small-town of York is probably
Re:Why the License (Score:5, Funny)
Re:Why the License (Score:4, Funny)
1) Someone suing creators of $OS_LISCENSE
-or-
2) $CORPORATE_ENTITY exploiting random $VICTIMIZED_PERSON
Clearly we can go with 2 and blame everything else on laywers.
Re:Why the License (Score:5, Insightful)
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?
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.
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?
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
Re: (Score:3, Insightful)
VM have lots more money than they do.
Re:Why the License (Score:5, Interesting)
speaking as a semi-pro photographer...
Because it's not the photographer's fault the item was used in a commercial way. That's entirely the fault of Virgin Mobile, who should have asked if the photographer had gotten a model release. If the photographer had said "no", then Virgin Mobile is the one who legally is on the hook. You can take all the pictures of people you want without a release, and there are a number of uses for which a release is not generally required (newsgathering, for instance), but for a strictly commercial use, this is what a model release is for.
I agree, suing Creative Commons is silly.
Re:Why the License (Score:5, Interesting)
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.
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.
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Re: (Score:3, Insightful)
How about the store that sold the camera to the counselor?
What about the middle man who wholesaled the camera to the store chain?
The guy who drove the truck to deliver the camera to the store?
The only entity that deserves to be sued is the one that took the picture and put it on Flickr with the wrong license.
Re:CC gets out easy. (Score:5, Informative)
In my master's thesis about CC I concluded as much, among other traps.
Re: (Score:2)
Not to say that any of these are plausible, but if you had to argue something, perhaps:
A) Commons contributed to the abuse by misleading the photographer regarding the rights involved by assigning the license.
B) Commons contributed to the abuse by encouraging the photographer to enter into a legal agreement that Commons should of known he did not have the authority to enter.
C) Commons contributed to the abuse by encouraging the
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Re: (Score:3, Insightful)
This is "insightful"?! (Score:5, Insightful)
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.
Re: (Score:3, Informative)
photographer. Virgin has an out- IF they did their due dilligence. In this case, since it's
not a stock photo agency (Sorry, CC doesn't absolve them of this requirement...) they should
have verified with the professional photographer that he had the model release. No psychic powers
needed there- they do it with other independent photographers- CC doesn't magically make it something
for Virgin and their Ad people to
Re: (Score:3, Insightful)
You know the old saying... no publicity is bad publicity.
This suit is getting Virgin plastered all over the news.
I wouldn't be surprised if the guy responsible got a promotion
Its the girl's fault (Score:2)
Actually its the photographer's fault (Score:5, Informative)
Re: (Score:3, Informative)
Re:Actually its the photographer's fault (Score:5, Informative)
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.
Re: (Score:3, Informative)
Where things become different are when it's a photo of a particular individual. In that case, the individual has a
Re:Actually its the photographer's fault (Score:4, Informative)
That depends on the specifics of the model release contract.
For instance, someone may be okay with their photo being used "in good taste" but not happy for it being used to sell annal insertion sex toys. More specifically, a supermodel may restrict rights for photos from a shoot for one product, to be used only with that product, in that particular campaign, is a specific magazine publication/edition, for a specific number of prints.
By default the phototographer has NO RIGHTS for the image to be used commercially. The model rlease grants specific rights. However for these to be useful for stock photos, where the purpose is not known in advance, the model relase is generally fairly broad brush.
Also note, that a model release IS a contract. To make it valid you need to make sure that the model receives some valuable consideration (money/free print) and is aware of this point.
Finally, to my mind, CC is completly in the clear as a non-involved third party. The main fault lies with Virgin for not ensuring the image had a model release. Note that the photographer is allow to sell his copyright images without a model release - ie as individual framed artistic images. It is the pairing of the image to endorse a product that is core issue.
Doesn't sound like commercial use (Score:2)
OK then Virgin would be at fault (Score:3, Insightful)
Re:Actually its the photographer's fault (Score:5, Informative)
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.
Re: (Score:3, Informative)
NO, it's NOT the photographer's fault (writes a photographer).
Commercial use includes EDITORIAL use, such as articles, textbooks, etc. which requires no model release. You are actually talking about only one form of commercial use, advertising use, in which case the PUBLISHER, not the photographer, needs a model release (the photographer is usually the one who obtains a release, but it's for the benefit of anyone who publi
Re:Its the girl's fault (Score:5, Insightful)
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.
Re:Its the girl's fault (Score:4, Interesting)
Re:Its the girl's fault (Score:4, Insightful)
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.
Re: (Score:3, Informative)
This is pretty explicit.
Re:RTFL (Score:4, Informative)
Read the license
It states that the license does not imply a model release.
Re:Its the girl's fault (Score:5, Insightful)
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.
You can't represent what you don't have with CC (Score:5, Informative)
The CC explicitly doesn't make any representations about rights you don't own. If you read the source [creativecommons.org] you'll see:
This is actually explained in the FAQ [creativecommons.org]
Re:Its the girl's fault (Score:4, Interesting)
Well (Score:4, Funny)
Re:Well --- Why Not?? (Score:5, Informative)
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/ [flickr.com]
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 [dallasnews.com]
Cheers, Jim
Where's the model release? (Score:4, Informative)
Re: (Score:2, Insightful)
Re: (Score:3, Interesting)
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.
You make a good point about the necesity of a release but the counselor is in the clear. From TFA the counselor wasn't named in the suit. Further, the lawsuit is seeking damages for libel (written defamation). One of the elements of that cause of action is some sort of false or damaging statement. The counselor did not make such a statement and therefore couldn't be held liable for libel (law student joke).
The TFA did say the Plaintiffs named Creative Commons which is a big mystery. Creative Commons h
Re: (Score:3, Funny)
*groan* No wonder everyone hates lawyers.
Model releases may not apply internationally... (Score:5, Informative)
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.
Copyright laws are not the only use restrictions (Score:4, Informative)
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.
Re:Copyright laws are not the only use restriction (Score:3, Insightful)
Virgin is in the wrong here
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
Flickr is not a stock photo repository. (Score:5, Interesting)
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.
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.
Re:Flickr is not a stock photo repository. (Score:5, Informative)
IANAL, but here's what would seem to be the relevant disclaimer in the CC license:
Re: (Score:3)
As the radio talk-show lawyer always asks... (Score:2)
"What did you lose (in monetary terms) by this picture being used?"
Like other cell phone companies where lining up to use the picture... now they are backing off.
I'd say damages are $1.00 for each random person off the street who can name the pictured individual. (Take 10,000 samples if you want.)
Ridiculous (Score:5, Insightful)
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.
Virgin is not innocent (Score:5, Insightful)
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.
Re: (Score:2)
This is not true, if the talk of the "model release" is true. With no model release, it's not legal to use the photo commercially. Assigning copyright does not mean there is a model release.
Hmm (Score:4, Insightful)
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.
Re:Hmm (Score:5, Informative)
Model Release (Score:2)
Greedy BS... (Score:4, Insightful)
Virgin is the ONLY one the girl can sue (Score:4, Insightful)
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.
I don't see how the tagline is derogatory (Score:3, Funny)
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
This Just in (Score:3, Funny)
Great new pet name for genitalia.
Gotta love the FA's headline... (Score:3, Insightful)
--insert masturbation joke here--
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It sounds like the company, Creative Commons Corp is the one really at fault. They should have confirmed that the photographer had a model release.
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Re:Virgin should pay them nothing (Score:5, Insightful)
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.
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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", bu
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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, par
Re:Virgin should pay them nothing (Score:5, Insightful)
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.
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There is a difference between saying "I copyleft my rights under copyright, including those restricting commercial usage of my work." and
The "Streisand effect" does not apply (Score:2)
You are under the impression that the family wants to suppress the photo itself, but there's no indication of that. The family either wants to distance themselves from the impressions and associations created by Virgin's marketing campaign, or they want a "piece of the action" (get paid for commercial use). Again, since the photo in and