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

[Adradis]

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:Virgin should pay them nothing

[Adradis]

If I understand it right (I glanced over the article itself [Yes, I blasphemize!]), but it looks like the photographer chose to do this on his own without asking the family. He took a picture at a summer camp, and used it later, they say they had nothing to do with agreeing to it.

Re:Its the girl's fault

[Kadin2048]

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:Where's the model release?

[ScaryMonkey]

But it's not the counselor being sued (although it should be). In fact, it sounds like he is claiming damages as well.

Re:Why the License

[omeomi]

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:Virgin should pay them nothing

[timmarhy]

1. the girl is under 18, a model release form is required

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.

Re:Virgin should pay them nothing

[timmarhy]

err, a summer camp is a private function, not public. And she is underage, in which case she can't sign a release to begin with, or give permission to have her photo taken.

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.

Ridiculous

[CTachyon]

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.

Hmm

[Selanit]

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:Copyright laws are not the only use restriction

[Just Some Guy]

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.

OK then Virgin would be at fault

[mozumder]

Since they're the ones using it commercially, and the photographer had no commercial intentions. (which would be separate from copyrights that creative commons allow.)

Re:Why the License

[Jah-Wren Ryel]

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!

Virgin is not innocent

[michaelmalak]

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.

Re:Its the girl's fault

[Todd Knarr]

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:Its the girl's fault

[Kadin2048]

Yes as I have been thinking about it more I'm starting to come around more to your line of reasoning.

It really depends on how you interpret the CC licenses that don't prohibit commercial use. I could see a fair argument that by putting a photo on the Internet with such a license, you are effectively saying that anyone can use it for a commercial purpose. This would put the photographer at fault.

However, I think the response to that (and one which as I've thought about it a bit more, I agree with) is that simply putting a photo up with a license that doesn't prohibit commercial use, does not mean that all commercial use is OK: it doesn't indemnify the downstream users of the photo, in other words, nor does it make any representations about the legal status of the photo, except regarding the photographer's copyright claim.

That's the real crux: by putting the photo under the CC license, was the photographer making a representation about how the photo could be used? Or was he only waiving his own copyright? I'm convinced now of the latter, but in front of a judge, I think it could easily go to the person with the better lawyers.

Greedy BS...

[geminidomino]

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

[arkarumba]

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.

Re:Why the License

[azenpunk]

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

[gerrysteele]

>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?

VM have lots more money than they do.

Re:Why the License

[giorgiofr]

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.

Re:Why the License

[skribe]

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.

Gotta love the FA's headline...

[unitron]

"Virgin sued for using teen's photo"

--insert masturbation joke here--

Re:Why the License

[BootNinja]

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

Comment removed

[account_deleted]

Comment removed based on user account deletion

This is "insightful"?!

[Dogtanian]

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.

Re:Why the License

[orangesquid]

I would say that licensing something under a CC license that allows commercial use nearly impliess the photographer *had* gotten a model release. Regardless of how the law sees it, that's how it seems to be to me, logically speaking.

Re:Why the License

[notthepainter]

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

[thewiz]

If that's the case, why isn't the company that made the camera being sued?
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:Why the License

[ZachPruckowski]

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

[skribe]

The CC clause doesn't release the photographer from their duty of care. By using a licence that allowed commercial use when they clearly did not possess those rights may be deemed fraudulent and deceptive behaviour. That might be enough leverage. It certainly should make them think twice about what they've gotten themselves into. The only winners, as usual, are going to be the lawyers no matter how this goes.

Re:Why the License

[budgenator]

I would assume that a summer camp corporation would have a responsibility to hire employees that are resonably mature, and display sound judgement and then train those employyes in the policies of the organization and varius applicable legal matters. Publishing photographs of easily recognisable minors in a venue and under licensing terms that allow commercial usage without model releases and parental consent in hand seems to me to display a lack of sound judgement, the camp probably has some major liability issues here. Imagine if instead some pornographer had pasted her head on a naked body.

Re:Why the License

[Stormwatch]

Why do they write the most important parts ALL IN UPPERCASE? It only makes it harder to read... it's like it's meant to do that!

Re:Why the License

[ivan256]

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.

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:Why the License

[Anonymous Coward]

While you may have a point technically, you must concede that trains of thought like that are why so many people (especially around here) dislike lawyers.

There are many people in the world who want to provide things to the world for free, as a public/community benefit. Open source is often an example. Creative Commons is apparently another. They try to provide a quick "avoid most copyright trouble" license for people, and do it at not cost. If I use them, I am not paying them any money and thus have no right to expect anything. Any other attitude may or may not be legally valid but is highly anti-social and will earn the wrath of those freely trying to better the world.

In you plumber example, my question would be was this a professional to whom I had paid money or my buddy helping me out? In the later case I have no right to complain, in my opinion. I am not paying money for a service, and without the exchange there is no assumption of responsibility on his part. I am trying to get something for nothing, commercially speaking - I may get lucky or I may not but that's the chance I take and I prefer to take that chance.

If you see CC as providing unauthorized practice of law, I ask you this - how does one with no outlay of $$ find a way to release content for free without having to worry about the legal fine points? If you claim there is no way you are undercutting the core philosophy of open source - if this isn't possible in the current legal framework the framework needs to be fixed, period. What if I ask a friend what license to use to accomplish purpose X - if he responds is he providing unauthorized practice of law? Where does it end?

Re:Why the License

[Malevolyn]

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.

Also, there's no reason to believe that the photographer had no idea what the CC license entails. He probably just picked that because it was the first on the list, or he had a "general idea" of how it worked. CC is just a bystander that got yanked in because some photographer made an uninformed decision.

Re:Why the License

[KiahZero]

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

[Stewie241]

I think it shows a lack of class for a corporation to show images of minors with sexually charged captions on them in advertisements.