A couple of months ago I wrote about Virgin Mobile’s controversial use of CC-Licensed images from Flickr in one of their advertising campaigns. Things have now taken an odd twist, with on of the teenagers features in the photos suing not just Virgin but Creative Commons as well! As the Sydney Morning Herald reported:
A Texas family has sued Australia’s Virgin Mobile phone company, claiming it caused their teenage daughter grief and humiliation by plastering her photo on billboards and website advertisements without consent. […] The picture of 16-year-old Chang flashing a peace sign was taken in April by Alison’s youth counsellor, who posted it that day on his Flickr page, according to Alison’s brother, Damon. In the ad, Virgin Mobile printed one of its campaign slogans, “Dump your pen friend,” over Alison’s picture. The ad also says “Free text virgin to virgin” at the bottom. […]
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. […]
People who post photos on Flickr are asked how they want to license their attribution. The youth counsellor chose a sharing licence from Creative Commons that allows others to reuse work such as photos without violating copyright laws, if they credit the photographer and say where the photo was taken. His Flickr page appears at the bottom of the ad.
Worth reading on this matter are:-
[X] Lawrence Lessig’s post “On the Texas suit against Virgin and Creative Commons” (always thorough, Lessig also links to the actual complaint);
[X] The Slashdot Thread on the lawsuit;
[X] and Joi Ito’s post, in which he notes this complaint is a “very good example of the complexities of copyright and other rights and the necessity of educating the public and ourselves about what copyright exactly is.”
Personally, I find it hard to credit the complaint against Creative Commons. I think as an organisation, CC have done more to educate people about copyright than almost any other organisation. While I admit using certain CC licenses leaves the lay-person ignorant about the complexities of model releases and the different international standards (ie you need people in the photos to grant permission for their image or likeness to be used), the fault lies more with copyright law per se than with Creative Commons. Of course, given this development, it would seem prudent time for a more detailed guide about using CC licenses on Flickr (and other photos) to be developed.
There is no point in suing Creative Commons on this. I think what is involved is not a copyright but a privacy issue. As I have written here http://privatesoliloquy.blogspot.com/2007/09/that-is-our-child-on-advertisement.html, rules on privacy of people photographed in snaps, advertently or inadvertently, are still gray in some countries. Companies could help by caring for peoples’ privacy.