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.'"

Re:Its the girl's fault

[janrinok]

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.

Re:Where's the model release?

[theophilosophilus]

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 holds no rights in the license and makes clear it is not providing legal services. The closest analogy to this situation is a third party suing the attorney that drafted a legal document. The only way people win in these suits is if they were the intended beneficiaries of the contract/instrument (easiest case is the will case where an attorney error screws someone out of money from the will).

Flickr is not a stock photo repository.

[Kadin2048]

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:Its the girl's fault

[WilliamX]

The contract with the photographer was the CC license that granted them the right to use it in a commercial setting provided they attributed him. The photographer clicked to allow the license most likely without understanding what he was doing, and the legal consequences of his action. If the court finds Virgin liable, then they are opening a huge legal issue in regard to all non-signed contract licenses, including the GPL.

Re:Why the License

[Sen.NullProcPntr]

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

[phil reed]

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:Hmm

[Nocterro]

mod parent up! The image was published in Australia, and down here we don't have your "right to privacy" that limits use of a person's image. Everyone's fair game.

Re:Why the License

[cenonce]

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

[spiritraveller]

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:Virgin should pay them nothing

[Christoph]

...photographing kids and giving away their photo's on the interwebs isn't legal.

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", but it does not mean I'm entering a contract to license the photo for all conveivable use to anyone who swipes it.

Food for thought:

• I took a photo of a toddler living on the streets of Manila, who may not have even had any parents that could sign a release. That photo was used by a charity in Malaysia for a fundraising ad (I was not paid). Which country's laws were broken? Which law? What kind of model release is needed? More importantly, who was harmed?
• A boy I photographed in the Philippines was killed. I was able to provide his grieving Mother with a dozen photographs of him, I believe the only ones she has (one was placed on his hearse during the procession to the cemetery). No, I did not have advanced permission to take those photos of Reynaldo. Nobody was harmed, but instead the photos were a priceless treasure.
• When a child is missing, if the most recent photo of them was not taken by the parents, but by someone else and it was taken without a release, would you put the photo on TV, find the child, and then sue the person who took the photo because they didn't get a release?

In the US, most laws related to model releases are case law, there is unfortunately no legislation that outlines when a release is needed and what it should say. A model release valid in California may not work in New York, much less Australia. Even then, certain uses (such as "sensitive subjects") require a different model release. It's way too complicated to just say "all web publication of photos of children is illegal".

If you respect other people's first amendment rights, you will start out assuming people have a right to publish/speak, and then very narrowly carve out limited exceptions where there is clear law. If you want your image to remain private, the Restatement of Torts (Second) says it's NOT private:

"...No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation." --Restatement (Second) of Torts Section 652C, comment d (1977)

Re:Why the License

[cenonce]

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

[Stewie241]

Who said anything about summer camp?

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.