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It’s sad when we finally reach a time in every day life where we turn a blind eye to all of the frivolous lawsuits that abound around us. Where does it begin and where does it end? Some of the lawsuits seem absurd when people make off with millions upon millions of dollars for spilling coffee all over themselves that they obviously knew was hot. Corporations and even individuals have to almost tiptoe through the world in this day and age.

One lawsuit that may seem frivolous to some however, is starting to shake people out of their daze of ignoring headlines covering the latest collection of frivolous lawsuits. How much do you feel that you own photographs of yourself? If a corporation acquired a picture of you and made a million dollar campaign out of it would you be offended, angry or file a lawsuit?

There is a new law and order in town that has been making headway on the Internet since 2002. A lot of times this license is used for pictures, audio recordings, music and even movies. The secret sauce that is allowing free access and use for these creative works is called, Creative Commons. Creative Commons LogoA Creative Commons license allows a person or entity to give all or some of their rights to the public while still retaining some rights such as commercial use rights and other more complicated licensing structures. If you want to find out more about Creative Commons you can visit their headquarter’s website here or you can read more in depth information on the history and development of Creative Commons at Wikipedia here.

A big lawsuit has surfaced with a Creative Commons license involved, a popular photo-sharing site called Flickr and a large corporation that most have heard of, Virgin Mobile. Before jumping into this mess however, we should look at how the Creative Commons license has held up in the past.

Creative Commons licensing has already had it’s days in court and was tested to see if CC could officially protect the average webizen. Flickr LogoThe first time Creative Commons was tested was in 2006 when a podcaster found out that a tabloid was using pictures he had hosted on his personal Flickr page. The podcaster, Adam Curry, did in fact have a Creative Common license on the photos with the exception that it didn’t apply to commercial usage. The courts did make a ruling in Adam Curry’s favor but they also didn’t force the tabloid to pay any fines as long as they didn’t repeat the violation. In the ruling, the courts made this specific statement, “The Dutch Court’s decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license.”Original Picture

This brings us to the current case at hand which entangles not only just a Flickr user and a major corporation but also a 3rd party that was photographed and put on a public Flickr page with the Creative Commons license in place. The difference in this lawsuit is that the Flickr user Justin Ho-Wee Wong, a church youth counselor in Texas, assigned a Creative Commons license which also gave commercial rights to anyone who wanted to use his photos on his Flickr page.Dump your pen friend

With the Creative Commons license including free commercial use, Virgin Mobile grabbed up a photo of Mr. Wong’s and used it for a billboard ad campaign. Virgin Mobile made changes to the photo like removing an Adidas logo and removing another person from the photo. After touching up the photo Virgin Mobile added their caption to the photo and sent billboards buzzing with their new marketing message. The caption to the actual billboard photo reads, “Dump Your Pen Friend.” The message indicates that if you sign up with Virgin Mobile and use their free texting service you can dump some of your pen pals and just text them instead.

Unfortunately, once Alison Chang and her family found out about this popular billboard advertisement they weren’t happy. The family and Alison have taken it offensively. Alison stated online in a posting about the photo, “Hey that’s me! no joke. i think i’m being insulted.” Now months down the road, Alison and her family members are going through proceedings that take them down the path to sue Virgin Mobile for damages in the Federal District Court of Dallas, Texas.

Virgin Mobile suedSo if the Creative Commons license gave commercial rights freely through Justin Wong’s Flickr page, how can Virgin Mobile be sued for using the picture commercially? What the courts will have to look at in this case is if Alison Chang’s rights were violated as a 3rd party by being in the photo. So the true question comes to whether a person has enough privacy to not allow an image of themselves to be used in advertisements, promotions and other commercial endeavors without their permission. What do you think? Do you have a right to say whether your image can be used commercially if someone has already given the rights away for free using something like Creative Commons? Leave us a comment or submit at our form on here about what you think and the arguments you see arising due to this case.

The courts will decide what can be given away with commercial rights for public use what additions do you think they should add?

If you’re a Flickr user and you have opinions on this issue we’d like to hear from you. Whether you’ve given away photos with commercial rights / creative commons, had your photo used without permission or have used hundreds of photos without permission we want to know. Lawsuits are growing that reference rights to content on the Internet and everything from personal photos, videos and audio could be up for grabs.

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16 Comments to “Courts will decide whether you have the rights to your personal image”

  1. on 09 Oct 2007 at 3:27 amRichard Tallent

    (I’m a photographer and a bit of an IP law junkie.)

    The Creative Commons license is ONLY a copyright license. It does not speak one way or to another to any rights of publicity or privacy that a subject of the photograph (person or building) may have. Privacy and publicity rights differ from state to state and are completely separate from copyright, which also varies somewhat by country.

    Virgin (or their ad agency) was at fault for not clearing *all* rights to use the photo. They should know better. When you purchase rights from a commercial stock agency, they not only secure a copyright license from the photographer, but also have a guarantee from the photographer that he has secured appropriate model releases. A simple request to the photographer would have told them they would need to secure a release from the girl (or her parents).

    But there are also important issues of jurisdiction and international law here.

    So, this is not a clear-cut case of privacy/publicity and it has NOTHING to do with the validity of a Creative Commons license.

  2. on 09 Oct 2007 at 3:42 amPaul

    Photographers have their models sign a Model Release Form.

    She didn’t sign one.

  3. on 09 Oct 2007 at 3:45 amDerry Bryson

    Not exactly. If you give up the rights to your personal image under some sort of license, then you deserve what you get. Sorry if you didn’t pay attention to the details when you posted your images.

  4. on 09 Oct 2007 at 4:23 amlabrador

    There are two rights that have to be managed here. The rights of the photographer who holds the copyright to the image and the privacy rights of the subject of the image. Virgin should have got permission from both parties before using the image. Given that it was a flickr image, it probably wouldn’t have been that hard to contact the subject (Alison Chang) via the photographer (Wong) and come to a pretty easy agreement. It is pretty cheesy of a company as big as Virgin to skimp on this stuff. They could easily have afforded to get the picture from stock photography or hired their own models and photographers.

  5. on 09 Oct 2007 at 7:35 amJames

    If I remember my Copyright lectures correctly, the photographer should be at fault for making the images available (in whatever way) without assuring a model-release form.

    That being said, it’s safe to assume the vast majority of flickr photos won’t have done that, so why the advertisers even thought they could use it commercially is beyond me…

  6. on 09 Oct 2007 at 9:05 amPaul

    I bought my face it is MINE!.

    So if I take your picture too it is mine as well.
    To do with as I please being as I a graphic artist.
    Cool!.

    If I am in a crowd of people, and you take a group shot.
    And I did not give you my permission to use my face, $10.00 bucks says you will still use the shot.

    And like the movie “Deep Water” you will find out where there Sharks are real quick when I am suing you for a few million, can you say “Feeding Frenzy!.”

    Now that would be worth a cool million just to watch.
    Film at 11:00

  7. on 09 Oct 2007 at 9:35 amJohn

    This is not as simple of a case is many seem to think…

    The image was shot in the US, in Texas to be exact, by a US photographer of a US citizen. Texas has no statutory right to privacy OR publicity. In that respect it is a common law state. There MAY be some personal rights vested in Ms. Chang’s image but they will not be the same as in a state with statutory rights in place.

    The second issue is that Flickr is, IIRC, a Canadian company. So Virgin Australia will have actually sourced the image from Canada not the US.

    Third, Virgin Australia is NOT the same company as Virgin in the US. Virgin itself, the parent, is a British company but it only franchises the brand, it does not own or operate all the other companies that use it’s name. So the question arises if Ms. Chang can even sue Virgin [the US company using the brand] for something that a completely different foreign company [Virgin Australia] did. The image was not used in the US by the US franchisee, only in Australia by the Australian franchisee.

    Lastly, an Australian lawyer looked at this, as well, and doubts that even if Virgin Australia was sued in Australia that the Australian courts would agree that an image of a non-Australian person, Ms. Chang, shot in the US by a US photographer, Justin Ho-Wee Wong, and sourced from outside Australia, Flickr in Canada, could even be actionable under Australian law for privacy or publicity purposes.

    It will be interesting to see how it ends, but it is probably going to end badly.

  8. on 09 Oct 2007 at 12:11 pmKelly

    I’m a Flickr user, and I’m fairly certain that they sent around a notice a while back that asked users to be positive what kind of license they awarded their photos. Plus, next to every photo it says the rights next to it, so realistically I would say it’s the users own fault for not being more cautious.

    It’s a given that big corporations will take advantage of free stuff whenever they can.

  9. on 09 Oct 2007 at 12:37 pmbarry

    Photographers have their models sign a Model Release Form.

    She didn’t sign one.

    not required under australian law as far as i’m aware anyway. (IANAL)

  10. on 09 Oct 2007 at 2:42 pmGemma

    Its a dangerous road to walk down to take rights away from photographers, what’s to stop people objecting when incriminating photos are taken?

    I think honestly, it should be left up to the photographer, since they are the one doing the artistic thing.

    If he/she had done a sketch, there would be no question, and i think the same rules apply. If the person has an objection, they should take it up with the photographer…

  11. on 09 Oct 2007 at 7:00 pmRemy P

    The photographer is at fault for selling a picture without th eproper model release forms.

  12. on 26 Oct 2007 at 1:12 amMarie

    Everyone is always trying to get something for free. I think Virgin thought nobody would find out they used the picture and thought they were protected through all the loopholes of creative common license and the mess of going through different country’s and states in a circle.

    Being the big company they are of course they could have hired a Model and a Photographer. If it was an amateur photographer they probably did not know or didn’t bother to get a Model release and when offered the check they took it without getting a release or compensating the Model. Not doing this really screwed things up badly.

    Virgin was either testing out whether they could get away with this and willing to throw a bunch of money away on a lawsuit if caught for the potential benefit of getting cheap and or free pictures through some loophole in the future or they were just simply too busy or didn’t bother to ask the photographer if they got a model release.

    Who knows. Whatever the case, the Model should be compensated. No person should be exploited for commercial gain without compensation. Period. There needs to be laws to protect Models and give them equal rights to there pictures as in equal copyrights so that they will always have a say in what, where, who and how much they the subject is compensated. It’s that simple and that easy.

  13. on 31 Oct 2007 at 5:17 amJimmyG

    I’m currently looking into a situation that is related to the above statement. A television network in Canada televised a show that was purchased from a production company that did not get contractual release from the performers to have the show aired (although they were paid and understood they would be on TV). In this example the show was repeated for several months after the recordings were completed.(Performers were not told this would happen). Does the performer have a copyright over their image being shown (in repeats) without permission? Does the performer have a legitimate claim to compensation if the network aired repeats of the program without release forms?

    Looking for answers

  14. on 31 Oct 2007 at 2:40 pmphilippe

    I enjoy Flickr but I’ll never use it for my private photos, I’d rather use 2pad .
    I don’t want anybody to be able to see my family photos. I want to decide exactly who will get them and I want to personalize the comments according to each recipient. In this case she will not have problem with Virgin if she used 2Pad

    Flickr is public 2Pad is Private

    Then I use www.2pad.com.

  15. on 20 Oct 2008 at 7:38 pmItaliak1

    Thank you for valuable information.

  16. on 27 Nov 2008 at 3:50 pmgirls beds

    well done. i’am gonna return in some time for sure

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