A Tangled Web

"In the world of creative works, photography has always been in a category alone." Such begins the rather philosophical conclusion of a New York Times article about the delightfully long-and- winding case brought against Virgin Mobile in Australia by Alison Chang, a 15-year-old girl in Texas. First, a picture of Alison was taken by her church youth counselor, Justin Ho-Wee Wong, which he put up on flickr along with some 11,000(!) of his other photographs, with a Creative Commons usage license that allowed for commercial uses as long as he was credited by name. From there it was taken by a Australian ad agency, which altered it and used it for a ad for Virgin Mobile—crediting Wong as requested, not thinking it had done anything wrong.

Forgotten in this happy recycling-fest were Alison's rights as a model, which aren't the photographer's to give away. Then, another flickr user, "sesh00" (Brenton Cleeland), took a picture of the ad (shown here…legally, I might add, since this is a news item and the picture is directly relevant to this text) and posted it to flickr!

…Where Alison Chang herself was the first to comment on it, saying "i [sic] think i'm [sic] being insulted." Thus began a long process of sorting out the various rights and courtesies that have led to the lawsuit being filed against Virgin Mobile by Alison and her family.

Creators…it's ten o'clock. Do you know where your photographs are?

______________________

Mike

Comments

[charlie d]

It's a small world after all...getting smaller every day.

I always assumed stuff like this could or has happened on Flickr. I just signed up recently in order to join some of the local indi-media's pools but still, for the life of me can't really figure it out.

Is it just me or is Flickr a bit of a hulking beast that is hard to tame?

Someone at Virgin has or will surely lose their job. That is such basic stuff for a company that large.

Isn't it?

[Hank G.]

Free models, free locations, free assistants, makeup, etc., and free photographers, the only guys who do nothing for free are the owners of the media conglomerates. Funny how they think they deserve billions but feel the people who actually create the content deserve little or nothing. Welcome to the new economy.

[Tom]

Hah.

And where are the "real photographers" that were laughing at all of us who mark our "silly snapshots" as "all rights reserved" ?

Not that I remember who they are/were...

[Matthew Brown]

IMO, Virgin Mobile in Australia and its ad agency either knew or should have known that they needed a model release that they did not have. Cynically, I suspect, they decided not to care.

[William C. Hutton]

I have no idea where my photographs are. If I wanted to know where they are, I would not publish them on the Internet. If I self-published photographs in print media thirty years ago, I wouldn't have had any idea then either.

At the same time, using a Creative Commons License that requires attribution and does not allow commercial use or modification affords a reasonable degree of protection. People have a legal way to use my photographs, and my liability is lessened–to some degree–if an unknown third party violates the License.

[Mike]

Tom,
Fair enough, but note that Virgin did not violate any right of the photographer's. He had posted a Creative Commons license allowing commercial use. They used the picture in good faith as far as they knew (or maybe--I suppose that's conjecture. Seems so, at any rate). The issue was merely that Wong hadn't gotten a model release from Chang, and he doesn't have the right to give away HER rights.

Mike

[Doug Pardee]

Mike, don't blame the photographer. The Creative Commons license (version 2 and later) specifically disclaims that rights have been obtained. In fact, it disclaims that the licensor even has the right to license the material in the first place.

The Creative Commons FAQ explains this in fairly plain English: "the licensor is not guaranteeing anything about the work, including that she owns the copyright to it, or that she has cleared any uses of third-party content... before using a Creative Commons licensed work, you should satisfy yourself that the person has all the necessary rights to make the work available under a Creative Commons license... If the work contains images, voices, or likenesses of people, educate yourself about publicity rights."
(http://wiki.creativecommons.org/FAQ)

[Ctein]

This story made my morning. It's great that this nice kid will likely no longer have to worry about college expenses.

All predicated on just what personal rights laws are in Australia. I don't know them. It seems likely to me that Virgin violated models' rights; they certainly would have under US, Canadian, or UK law. But Aussie law? I have no special knowledge-- does anyone here?

Assuming the law's similar, though, the only folks who did anything wrong were the ones at Virgin. The photographer didn't. Put colloquially what the CC license says is, "Hey, so far as I am concerned, you can do anything you want with my photos. But I can't speak for anyone else who may have rights associated with those photos."

From the comments on Flickr, it looks like the photog mistakenly selected the commercial CC instead of the noncommercial CC. That's his loss, but it's not a legal or ethical error. Neither CC gives Virgin the right to use Alison's image in that fashion without a release from her (her parents, unless contract age-of-consent is 15 in TX and Australia).

I can see how this could happen by accident, especially since Virgin seems to have built a whole campaign around Flickr images. Someone failed to flag this one to confirm/get the model's release.

Still gonna cost them big time, as well it should. Monumental ineptness has its price.

pax / Ctein

[Hank G.]

What the agency did was not just wrong, it was stupid. There is no way I would put an image in an ad for a national account with a person in it if I didn't have a model release. I certainly would not assume that a photo I grabbed from Fickr had the proper releases. Was $25 (for a high res image) to much to pay at a micro-stock site for the assurance of a release? I guess they figured the model would never know.

By the way I like Fickr and if this photographer chooses to allow his work to be used commercially for free I may not agree with it but it's his business. However he never asked the subject's permission to distribute her image for commercial purposes. I'm sure the agencies lawyers will be looking to share the liability with him if it comes to that.

[Victor]

Is this the same Virgin that Richard Branson created, with foundations in the music biz?

[Jan Luursema]

Hank, I don't think that's a real possibility, because even if it was marked as free for commercial use, the user would always need a model release if a person is prominently or even recognizably featured.

@Ctein: Australian (copyright) law originated from mostly British (common) law and is in accordance with international standards. So no problem there!

This was just plain dumb from Virgin mobile, their law department must have been sleeping!

[Janne]

The photographer is not to blame; the publisher is. It is the user - the publisher - that needs a model release (and permits and whatever, depending on the situation), not the photographer. And unless they asked the photographer for a model release and he lied to say he had it, he's all in the clear. Kind of hard to fathom an ad agency that doesn't make sure they have releases before using an image.

The CC license only talks about licensing the photographer's property, not that of the model.

[Chris]

>This was just plain dumb from Virgin mobile, their law department must have been sleeping!

I saw this story and indeed smacked my forehead. I have an expression for this: "the new incompetence.." It's everywhere.

[Michael W]

>

Virgin Mobile was started in Australia by Richard Branson in partnership with Optus. a few years ago he sold out his share to Optus. Optus is a publicly listed company in Australia but is majority owned by Singtel which is owned by the Singapore govt.

[Sam]

It wouldn't really matter if the photographer or Virgin had a standard model release. The suit is based on both rights of publicity and defamation. Just because you have a model release doesn't mean you can use someone's image and then present them falsely.

[Shelley]

You left some out some of the bits.

Creative Commons, itself, is being sued and not just by the young woman's family. The photographer is suing Creative commons for failing to not "adequately educate and warn him ... of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use."

In the Creative Commons weblog entry responding to the lawsuit, the author posts several questions, and then answers them. My favorite is the last:

So did the photographer violate Ms. Chang’s rights?

We certainly don’t think so. We don’t believe any court should find that Justin Wong had violated Ms. Chang’s rights simply by posting this photo of her in Flickr, however it was licensed. Cool (as in using Flickr, and even better, using Flickr with CC licenses) can’t be a crime.

Cool...can't be a crime. That's good to know.

[Eirik]

Another example of the Web 2.0 economy, see also http://www.roughtype.com/archives/2006/12/sharecropping_t.php

[Mike O'Donoghue]

It always amazes me that these discussions take place at all. The girl knew she was being photographed. There's nothing untoward in the picture which would infer an insult to her. Who owns reflected light? Should I have to ask just to look at someone? This is litigiousness taken too far. The profiteers are the lawyers again.

[ann]

If the suit is based on both rights of publicity and defamation, why are they suing Creative Commons, too? Greed knows no boundaries...

http://creativecommons.org/weblog/entry/7680

[Alec]

It may be best practice in English Law (and possibly Australian too) to get a model release, but there's no absolute requirement. In recognition of this, the Advertising Standards Authority code of merely "urges" advertisers (para 13.1) to obtain written permission before "portraying members of the public", and recognizes that failure to do so may (and only *may*) give rise to a claim for defamation by libel. That's for the model to bring suit, and is an expensive and difficult route to travel with in most cases no real prospect of success.

[Bryce Lee]

Yes, I know where my photographs are...
right here in my office in slide boxes.

I don't publish my photos on the internet;
to me the internet is similar to the
image in the booth as illustrated.
Public viewing encouraged!

Bryce Lee

[Robert Roaldi]

Tangled web indeed. I really like that sharecropping analogy.

But there's something I am missing. If it's bad to give away images for free (or next to free), why is it ok to use open source software? In my previous life, I programmed computers for 25 years, and the idea of spending nights and weekends writing/debugging software for nothing except a warm glow strikes me as a bizarre way to spend one's time. But people do it. And I am sure that others use that free (or next to free) software to earn money for themselves.

The only thing that really surprises me is that the corporations haven't already lobbied our guvmints into removing all the rights that get in their way of making a buck off us. I am amazed that we have the right to sue corporations at all. It can't possibly last.