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 the License

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?

Re:Why the License

It's realtively standard practice in such a lawsuit to include every party and let the judge determine which ones are actually potentially liable or not.

Re:Why the License

It's realtively standard practice in such a lawsuit to include every party and let the judge determine which ones are actually potentially liable or not.

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

The counselor is one of the parties seeking damages actually, so the current depth of his or her pockets is not in question.

Re:Why the License

The counselor is one of the parties seeking damages actually, so the current depth of his or her pockets is not in question.

At the moment you have been rated funny for some reason. But this is a very good point.

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

I suspect this is will be the primary point of failure for the lawsuit. If Virgin choose to fight this, then a counter suit against the photographer for failing in their duty of care to get a model release while offering the photo to be licensed for commercial use will bring some serious pressure upon him. The family may even win their suit, but not without causing their friend a great deal of harm in the process.

Re:Why the License

If Virgin choose to fight this, then a counter suit against the photographer for failing in their duty of care to get a model release while offering the photo to be licensed for commercial use will bring some serious pressure upon him.

This 'duty' doesn't exist for the photographer. It's always the responsibility of the final client to ensure that a model release exists. Just because the photograph in this case was free does not mean that Virgin / their advertising agency can suddenly forget about that.

Re:Why the License

I didn't know this. You appear to be correct, here are a couple [wikipedia.org] references [danheller.com].

Re:Why the License

"I suspect this is will be the primary point of failure for the lawsuit. If Virgin choose to fight this, then a counter suit against the photographer for failing in their duty of care to get a model release while offering the photo to be licensed for commercial use will bring some serious pressure upon him."

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 /. post:

"'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

I'm currently working on a chapter for the second edition of the Wiley book, "The Official Guide to Second Life."

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

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?

IANAL, but there's a high-profile suite in my area that's just like this. The laws vary from state to state but the common factor is "commercial/advertising use".
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.

Re:Why the License

It's realtively standard practice in such a lawsuit to include every party and let the judge determine which ones are actually potentially liable or not.

Not to mention generate some paying work for a different lawyer for each party too. What a freaking racket - just about anything a lawyer does causes other lawyers to get paid. Cha-ching!

Re:Why the License

Well the good news is that when you're an organization like Creative Commons, you're basically a team of lawyers with a marketing department.

Re:Why the License

Old saying: If there is one lawyer in town, he goes broke. If there are two, they both get rich.

Re:Why the License

The reason why we lawyers get "rich" (I wish!) is because people make the assumption that they know what the laws is and what the consequences are.

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

I think it's hard to accuse CC of malpractice here. They don't claim the licenses as individually suitable for your work and situation, they just offer boilerplate licenses that you can pick if you desire. It's the end-user who decides if the license is right for them. The licenses don't come couched as legal advice, they just offer an option. The problem on the licensing side is that the photographer selected a license without thinking about it. Really, it's hard to imagine a situation where any re-use of his photos of kids by an unaffiliated group would have gone over well with the kids and their families. Therefore he should have picked copyright and then just blanketly given the campers permission to use the photos. Or he should have picked CC-by-NC. Or a -ND license. Any of those would have prevented this, and even the quickest thought from him (or a lawyer's advice) would have avoided this.

Re:Why the License

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

Maybe we skipped that part in my Professional Responsibility class, but my prof was pretty damn clear - no malpractice claim can be had unless there's an attorney-client relationship. There can't be a relationship if one party is screaming at you, "I'M NOT YOUR LAWYER. I'M NOT GIVING YOU LEGAL ADVICE."

They're not providing legal services to clients any more than I am by posting on Slashdot.

Re:Why the License

Remember, it's 99% of the lawyers who give the rest a bad name.

Re:Why the License

Well thank god for that. For a minute there I couldn't figure out who to get mad at.

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

then why isn't she suing the photographer who submitted the image to the photograph and through negligence selected the license that allowed this to happen?

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:Why the License

then why isn't she suing the photographer who submitted the image to the photograph and through negligence selected the license that allowed this to happen?

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

then why isn't she suing the photographer who submitted the image to the photograph and through negligence selected the license that allowed this to happen?

Because the license does NOT allow this to happen.

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.

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?

Um, because they are the guilty parties. She apparently does not have a problem with the photographer taking the picture and putting it on Flickr. What she has a problem with is her picture being used to sell mobile phones. Normally, someone would get paid some money to have their picture used for this purpose. But apparently Virgin Mobile decided to go the cheap route, and it may turn out to be costlier in the long run.

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.

One might argue (and many might agree) that having your picture used in a national advertising campaign is a far more egregious violation of privacy than having your picture on a website mixed in with a lot of other pictures that only people who choose to look (your friends and anyone else who was there) are likely to see.

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?

There are a lot of ways it could be taken. But it seems to be a comment on her appearance, just as the other ads show people who one could believe were virgins, based on their appearance.

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

Even if he intended to release the picture under that license (which it seems he is saying he did not), that was only the copyright license. The rights of the model are a completely different issue. By releasing it under that license, he did not provide any warranty that the model had released her rights.

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.

Re:CC gets out easy.

Requiring due dilligence largely makes CC's existence largely moot. Their right of existence is not the fact that they provide licenses, but the fact that they facilitate and automate communication about authors terms (making the work available without further need for communication). However, without any saveguards, this has no value to the receiver of the work: they still need to seek out all parties and get permissions them.

In my master's thesis about CC I concluded as much, among other traps.

This is "insightful"?!

WTF?! Listen, there's a site out there that says "here, please take this picture and use it in your commercial projects". Why on Earth should they feel obligated NOT to do so? They had been given explicit permission to use the picture if they followed the rules, which they did.

Bearing in mind that Virgin (or rather, their ad agency) are professionals, a bit of real-world common-sense would show why your comment is *not* "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.

Well

Pix or it didn't happen.

Re:Well --- Why Not??

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".

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 /. discussion.
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?

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 [stanford.edu] from any identifiable people in the image.

Model releases may not apply internationally...

"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.

Copyright laws are not the only use restrictions

Virgin is in the wrong here, and CC has nothing to do with it, obviously. The CC license only releases certain provisions of copyright, but doesn't touch the kind of legal restrictions that require people's consent to use their image.

And Creative Commons the organization doesn't license anything, which the article mistakes. They provide license texts that other people use of their own accord. In order to license anything, you need to own the copyright first... and CC obviously doesn't own the copyrights to all material released under Creative Commons licenses.

Flickr is not a stock photo repository.

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 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.

Re:Flickr is not a stock photo repository.

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.

IANAL, but here's what would seem to be the relevant disclaimer in the CC license:

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.

Ridiculous

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

If some stranger takes a picture of me on the street without my explicit knowledge and posts it to Flickr with a Creative Commons license, would Virgin be allowed to use that image in an ad?

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.

Hmm

It's pretty clear from the article that the photographer chose the CC license, and the company fulfilled its terms. However, I'm pretty sure that the CC license doesn't actually affect the primary claim of the lawsuit, which is that the girl's privacy was broken and her reputation smeared. The CC license constitutes permission from the photographer to use the photograph for commercial purposes, but doesn't constitute permission from the subject of the photograph to have the image so used. If the picture had been, say, a nice picture of a mountain lake with no people in it, then nobody would care. The lake wouldn't care that its reputation might be damaged. But when there are people in the photo, then you need consent from each one before publishing it, particularly if you're making money off doing so. That's pretty standard operating practice.

Basically, it looks to me like Virgin Australia screwed the pooch on this one.

Oh, and it's unclear to me whether the counselor is 1) being sued; 2) suing; or 3) not currently involved directly in litigation.

Re:Hmm

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.

Greedy BS...

Suing the people who made the effing license? I hope they get stomped in court like the insects they are.

Virgin is the ONLY one the girl can sue

The issue is NOT about copyright. The photographer is perfectly able to sell a six foot framed picture of the picture of the girl, to which he own the copyright, as an individual artwork.

The issue is about the use of the girl to endorse a product, which requires a model release specifically granting permission for it to be used in that way.

Again, its not about copyright. So CC having anything to do with it is non sequitur.

The girl can really only sue Virgin, who are the ones who paired her image to endorse their ad campaign. Virgin may then on-sue the photographer if he falsely made any assurances about there being a model release - however as standard practice, Virgin really shoudl have had the model release in hand before publication.

Actually its the photographer's fault

for not acquiring a model release before putting his image out for commercial use. Both the girl and Virgin could sue the photographer.

Re:Actually its the photographer's fault

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.

Re:Actually its the photographer's fault

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.

Re:Actually its the photographer's fault

A model release is NOT a blanket permission saying "I grant you permission to use my image for anything, in any medium, forever..."

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.

Re:Its the girl's fault

No, as others have pointed out it's not the girl's fault but the photographer. Letting someone take a photo of you doesn't (usually) imply that they have gotten your permission to use your image commercially. They have the copyright to the image, but you still have some control over how your image is used.

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 ... but he put it up under a license that he really didn't have permission to use. In effect, it's like he sold something that he didn't rightfully own.

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

I definitely do not agree. Virgin need the release to use the photograph - not the photographer himself. He has not used it for commercial purposes because he was not paid by Flickr. However, Virgin have used it and they should have ensured that they have permission to do so. This is usually done by the photographer because he has contact with the model, but there is no legal obligation upon him to do so if he does not have any intent to use the photograph commercially. This is why it is in the model's interest to make sure that a MR is agreed and it also provides additional protection to the photographer but it is still not legally required of the photographer to do so if he does not use the images commercially.