Courts will decide whether you have the rights to your personal image

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. A 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. The 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.”

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.

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.

So 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.