[stewart_photo]

Expecting all releases to be signed for stock photography is standard. However, for other types of photos, it is common practice for the end publisher to ensure that all model releases are on file. Flikr cetainly is not a stock photo site, so assuming even something with a creative commons license or something else releasing it for anyone's use is the same as having a model release would be kind of short sighted. They might still have liability as obtaining copies of model releases for their records might be considered due dilligence. But then again it's Australia, so who knows.

Shortsighted and lacking due dilligence, perhaps. However, in this case, Virgin Mobile simply republished an image that had already been published on the Flickr website by the photographer. Since Virgin Mobile's republication of the image complied fully with the licensing terms established by the photographer (copyright owner and original publisher), any resulting legal ramifications will likely fall fully on the photographer/publisher.

Further, implied consent may also play a role here. Alison Chang (the young lady in the photo) is an active member of Flickr and was one of the very first to respond on the Flickr website following the publication by Virgin Mobile. As such, Alison was aware that the photographer had published the image of her on the Flickr website and did not dispute that (if I remember correctly, awareness without dispute is one definition of implied consent). As such, she will have a very hard time disputing the republication of an image that had already been published. Alison may also have some difficulties proving she was harmed in some manner by the image (already available world-wide on the Flickr website) being republished by the campany.

Of course, all of this, by all of us, is pure speculation since it's virtually impossible to predict how a judge might rule in any given case. Therefore, obviously please regard my comments as pure speculation, not fact.

stewart

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Last edited by stewart_photo; 10-03-2007 at 12:38 AM. Reason: clarification

[aabram]

As such, she will have a very hard time disputing the republication of an image that had already been published. Alison may also have some difficulties proving she was harmed in some manner by the image (already available world-wide on the Flickr website) being republished by the campany.

As I understood her lawyer is not disputing so much the publishing of that particular image but rather accompanying texts "dump your pen-pal" and "from virgin to virgin" or whatever the exact wording was. And that is something the original image had not, it is something that Virgin added, thus giving it entire new context.

-EDIT-

Further, implied consent may also play a role here. Alison Chang (the young lady in the photo) is an active member of Flickr and was one of the very first to respond on the Flickr website following the publication by Virgin Mobile. As such, Alison was aware that the photographer had published the image of her on the Flickr website and did not dispute that (if I remember correctly, awareness without dispute is one definition of implied consent). As such, she will have a very hard time disputing the republication of an image that had already been published. Alison may also have some difficulties proving she was harmed in some manner by the image (already available world-wide on the Flickr website) being republished by the campany.
stewart

Hi Stewart, Just because she has a flickr account and knew that someone had posted that image, it does not mean she knew what type of contractual agreement the person who posted the image had with flickr. How can you dispute a contract that you are not privy to?
The fair use of the image alone is one argument, but the posting of text that was not on the original image surely must have a different legal standard. The "virgin to virgin" implied text, could be "hurtful" to a teen girl IMHO.
If someone posts an image of you or I on some flickr account and then a company uses it, and implies in text that we are thieves in order to sell a car alarm.... it seems a very different thing than just using the photo...

I hearby declare that I am not a thief or a lawyer, I just watch them on TV.

My 2 cents
-gus-

[Mike Cash]

Yup, the Print-screen should work just fine.

I've never, as far as I know been that lucky to have anything of mine stolen or borrowed

If any one wants to, all they have to do is send an email.

I have much the same attitude. In fact, the site from which my images have been stolen includes a notice that people don't even have to ask permission to use the images....just tell me about (and include attribution.

Here's the text:

Images may be copied for use on non-commercial websites provided attribution and a notice of copyright ownership are placed nearby and notification is given by e-mail of intent to use images.

Either the image, the attribution, or the notice of copyright ownership must hyperlink to xxxxxxxxxxxxxx

Text may not be copied without prior written permission of the copyright holder. Images may not be copied by any commercial website or other commercial concern without prior written permission of the copyright holder.

Text and images may be freely duplicated in print form by educators for limited distribution to students and/or for use as instructional or illustrative materials in the classroom. This permission does not extend to the inclusion of copyrighted materials in any book or other bound format. Educators are requested to inform the copyright holder by e-mail of any use of copyrighted text or images from xxxxxxxxxxxxxx.

I think that's more than generous....and there are still a-holes out there who will steal the images and try to pass them off as their own. One guy even claimed that because he had cropped my photo that constituted a new image and he claimed copyright on it. Fortunately, I have a friend who has some roughneck friends in the same city (Sydney) the guy lives in and notice that I had an offer of the laying on of a gratis beating should I give the word was enough to sway the matter.

[AVANT]

That has ALWAYS been the policy flickr. A reason why I don't put my pictures up on there... I was one of those crazy people that actually reads the TOS...

"However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable" - flickr.com

I use fotki.com
"Fotki and FOTKI, INC. claim no ownership rights in the content you place on your Fotki albums. We will not use Member's images for marketing purposes or any other purposes without obtaining the Member's express permission."

So to lapeen and others who are curious, it is NOT true with all photo sites.

Lesson of the day... Read (or atleast skim) the TOS agreement

[Peter Zack]

Yeah After this thread I had a look at the site I use (usefilm.com) and they have a similar policy:

Q:Can I use images posted by other photographers?

A: You are not allowed to copy images from Usefilm for any other purpose. For example, you cannot copy images and post them on your own website, or another website, even if you give credit to the photographer. If you want to use images of another photographer, contact that photographer and make arrangements.

And if you look at the photo posted it is copyrighted to the photographer. So maybe Flicker is a very crappy place to put your images.

[ricardobeat]

Might be worth putting the quote in full:

With respect to Content you elect to post for inclusion in publicly accessible areas of Yahoo! Groups or that consists of photos or other graphics you elect to post to any other publicly accessible area of the Service, you grant Yahoo! a world-wide, royalty free and non-exclusive licence to reproduce, modify, adapt and publish such Content on the Service solely for the purpose of displaying, distributing and promoting the specific Yahoo! Group to which such Content was submitted, or, in the case of photos or graphics, solely for the purpose for which such photo or graphic was submitted to the Service. This licence exists only for as long as you elect to continue to include such Content on the Service and shall be terminated at the time you delete such Content from the Service

This just gives Yahoo/Flickr the right to use the image on the website itself, like displaying it on the front page, or in promotional material for the Flickr service (which I guess shouldn't be a problem for anyone). For any other uses, you have all the rights, which you can keep to yourself (All Rights Reserved), or share partially (Creative Commons). Keep in mind that a CC license requires that the image is not modified and that there's no change in context or implications of it. Considering that, using it for advertising a product or service is crossing the borders of this limitations. Tough job for the judge.

The following paragraph is a bit more scary thought:

With respect to all other Content you elect to post to other publicly accessible areas of the Service, you grant Yahoo! the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.

Basically it means everything you write on Yahoo public groups is owned by them. Don't post samples of your next book, songs or poems over there!

[stewart_photo]

As I understood her lawyer is not disputing so much the publishing of that particular image but rather accompanying texts "dump your pen-pal" and "from virgin to virgin" or whatever the exact wording was. And that is something the original image had not, it is something that Virgin added, thus giving it entire new context.

(snip) The "virgin to virgin" implied text, (snip)

I did not address those issues, aabram, because they did not relate to the topic of this discussion - using or publishing an image from a photo sharing website. Regardless, since you brought it all up, I'll quickly address it now. However, lets not get into a huge debate about this since these aspects really belong more on the Flickr website than on this photography website.

For both gus and you, the exact wording was "Free Text Virgin to Virgin," a reference to the company's name, in smaller text running across the bottom of the advertisement directly opposite the Virgin Mobile company logo. No effort was made to link those words to the girl in the image. Indeed, the same text appears in other Virgin Mobile text messaging advertisements with images of people young or old, male or female. As such, it is no more offensive than text reading "Free Text Verizon to Verizon" opposite a Verizon company logo in a similar text messaging advertisement.

Regardless, the family has filed a lawsuit accusing Virgin Mobile of libel and invasion of privacy. 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. "A lot of her church friends saw it."

Of course, to prove libel, the family must first prove the word "virgin" applied to Alison Chang (the young lady in the photo), that the word was printed for the purpose of defaming Alison, and, since truth has always a valid defense against libel, the family must also show the word was untruthful - that the 16-year-old Alison was not a virgin. All three must be established to meet the legal definition of libel. I don't think that can be done in this case. Further, I suspect the effort to prove the word was untruthful alone would damage Alison's reputation, and expose her to ridicule (from her church friends or whomever), far more than any Virgin Mobile advertisement could possibily have done.

As to the family's claim that people can now Google her, the Virgin Mobile advertisement featured an anonymous girl (no identity of any kind). Instead, Alison Chang identified herself on the Firckr website and the family did likewise in subsequent statements to the press. Therefore, her identity now being known was caused by the actions of herself and her family, not the Virgin Mobile advertisement.

Finally, the invasion of privacy charge also requires the family to prove the word "virgin" applied to Alison. Since the word clearly refers to the company's name, appearing opposite the company name, I seriously doubt this requirement can be met either.

Oddly, the family also filed the lawsuit on behalf of the photographer, Justin Ho-Wee Wong, in addition to their daughter. In reality, the family should be suing the photographer since he actually created this entire mess by first publishing the image on the internet and then releasing it for commercial use world-wide. Regardless, the suit seeks unspecified damages for both Allison and the photographer.

stewart

[SpecialK]

a thief or a lawyer, I just watch them on TV.

That should be thief AND lawyer, as they are inseparable.

I'm off to check my Photobucket terms of use....

[alinla]

As such, I don't think Alison Chang has a leg to stand on when it comes to a lawsuit against Virgin Mobile. The company is clearly going to argue the photographer is the one solely at fault for not obtaining a model release prior to releasing the image (to them and everyone else) for commercial use, and a judge in a lawsuit would likely agree fully with that argument.

stewart

Excerpt from: Frequently Asked Questions - Creative Commons Wiki

Publicity rights allow individuals to control how their voice, image or likeness is used for commercial purposes in public. These rights are relevant to any work that contains human subjects, such as photographs, audio or video interviews, plays, songs, and other spoken or visual content. When transmitting this sort of content, including the voices or images of anyone other than yourself, you may need to get permission from those individuals if you are using their voice or images for commercial purposes. This is a distinct and separate obligation from obtaining the copyright license, which only gives you a license from the author (or photographer) but not from the subjects. A Creative Commons license does not waive or otherwise affect the publicity rights of subjects.

I believe Virgin Mobile Aust will be fighting an uphill battle here. I believe their most likely legal recourse is to settle and sue the ad agency which provided the images & campaign to them to recover their loss.

Why the family sued Creative Commons org really daffles me. It really makes them seem greedy. IMO they've lost most public sympathy they gained through this action.

I agree little irreparable harm was caused here, but you can't just use anyone's likeness for advertising purposes without the proper consent.

[stewart_photo]

(snip) I believe Virgin Mobile Aust will be fighting an uphill battle here. I believe their most likely legal recourse is to settle and sue the ad agency which provided the images & campaign to them to recover their loss. (snip)

Of course, this thread is talking about two different things - the main topic of this thread (publishing with a theoretical discussion about whether the family would have any legal remedy regarding this) and the issues the family has actually pursued the lawsuit (libel and invasion of privacy). Since the lawsuit does not directly address Alison's control of her own image and permission, anything relating to that would not necessary cause Virgin Mobile to settle.

Regardless, your comments do relate to the theoretical discussion about publishing. However, since I've already talked that to near death, I'll avoid any more, other than to add it's the combination of factors, not just the Creative Commons Attribution license alone, that provide Virgin Mobile some margin of safety from lawsuit concerning this. Those factors have already been outlined in previous messages.

Why the family sued Creative Commons org really daffles me. It really makes them seem greedy. IMO they've lost most public sympathy they gained through this action. (snip)

Agreed. The same with adding Virgin Mobile USA to the lawsuit when this company is not directly related to Virgin Mobile Australia and had nothing to do with the advertising campaign.

stewart

[George Lama]

I think suing CC is more of a shot-gun approach to calling attention to an issue... even the kid's attorney said on air that the whole issue isn't even the copyright, but more the right of publicity (which the CC license clearly does not cover).

What I find really sad is the photographer, a camp counselor who in my opinion should be fully aware of a kid's right to privacy, uploads the photo to Flicker, then specifically sets the licensing options to CC Attribution license, which includes Commercial use. It wasn't a Flicker default here... it wasn't just automatically set. He had to select from one of six licensing options, including the can't-use option. Then the councelor freaks out and claims he didn't understand what the license meant...

I even get a signed release to hang someone's photo in my studio, even if they are family...

Here's the CC blog on this issue
Lawsuit Against Virgin Mobile and Creative Commons – FAQ - Creative Commons

[little laker]

What I find really sad is the photographer, a camp counselor who in my opinion should be fully aware of a kid's right to privacy, uploads the photo to Flicker, then specifically sets the licensing options to CC Attribution license, which includes Commercial use.

I'd be very surprised if it's the first time that he did this, although it might be the first pic he actually sold

In my opinion he was in a trusted position, and just took advantage of the very people that he was supposed to be helping.
I hope that they don't give him the chance to do the same thing again.