Virgin Mobile misappropriates likenesses

Martin Ringlein is HOT!

Molly just twittered about this article, calling out Virgin Mobile's latest ad campaign, Are you with us or what?

Virgin Mobile (or their ad agency) used Creative Commons-licensed Flickr photos (in this case, Daniel's) to use in their campaign. As the article linked above points out (and Molly confirms), Virgin Mobile (or their ad agency) never obtained model releases from the people featured in this photo.

While the use of the photo itself is not a violation of Creative Commons, failing to obtain model releases from the individuals in the photo is an infringement of their rights. I'm guessing Virgin Mobile's got some legal action about to be sent their way.

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Comments

wjkocik says:

Not to be a wet blanket - and I am as far from a subject matter expert as you can get - but I kinda thought that it would be Daniel's responsibility to get model releases before licensing the photos to Virgin (which he did by putting them under a CC license). As I understand it it's generally the photographer's (and licensor's) responsibility to obtain releases, not the licensee. That's based on a 10,000-mile-high cursory review of model release laws, though.
Posted 30 months ago. ( permalink )

jgarber says:

Good point, Bill. I'm not a lawyer (and I definitely don't play one on TV), so I'm not sure how it works. Could it be the difference in intent? Daniel's posting of the photo is non-commercial in nature vs. Virgin Mobile's obvious commercial pursuit.

Of course, that's just speculation.
Posted 30 months ago. ( permalink )

Nguyet.Vuong says:

wjkocik brought up some good points there. When I do photoshoots with friends, I ask for their model releases before putting them up on Flickr. At the very least, a few sentences of something along the line of "Yes, I agree to model for you" informally. This is why I don't do CC anymore.
Posted 30 months ago. ( permalink )

wjkocik says:

Well, from my understanding (which, again, is certainly not authoritative), a photographer is responsible for ensuring that they have the legal right to license a photo before doing so, which includes obtaining necessary releases. And while Daniel didn't specifically enter into a deal with Virgin to license the photo for their commercial use, he did place it under a license that does not disallow commercial use. Virgin could interpret this as his statement that, as the photographer, he's covered the legal bases, and they *may* even be in a position to pursue action against him if one of the subjects in the photo files a claim against them.

But I'm pontificating here. It would be very interesting to find a parallel case and see how that turned out, if there is one, and it will be really interesting to see what, if anything, comes of this one.

The thing that would worry me most is that a subject in the photo who wouldn't necessarily go after Daniel may decide to go after Virgin, and in doing so inadvertently sic Virgin on him, and I'm not sure if there would be any stopping them once that happened.
Posted 30 months ago. ( permalink )

mollyeh11 says:

That's why I'm talking to an IP lawyer, one I've known for many years and whom I trust. I have NO desire to harm Daniel. More importantly is that these issues get clarified because with the growth of social networking and sharing of digital materials the laws are simply going to have to grow and clarify.

Really, I wonder if this isn't something that should be taken up with the EFF as well. Hmm.
Posted 30 months ago. ( permalink )

thraxil says:

According to wikipedia: "Note that the photographer is typically not the publisher of the photograph, but sells the photograph to someone else to publish. Liability rests solely with the publisher, except under special conditions. It is typical for the photographer to obtain the model release because he is merely present at the time and "can" get it, but also because it gives him more opportunity to sell the photograph later to a party who wishes to publish it. Unless a photo is actually published, the need (or use) of a model release is undefined. And, since some forms of publication do not require a model release (i.e., news articles), the existence (or non-existence) of a release is irrelevant."

By that interpretation, VM is clearly in the wrong by using the photo for commercial purposes without a model release. Whether or not flickr ought to have a model release depends on whether flickr is considered to be "publishing" the image (probably) and whether it's considered commercial use or is in the category of news articles which don't need model releases. That would be up to lawyers to determine.
Posted 30 months ago. ( permalink )

wjkocik says:

The Wikipedia text thraxil quoted makes sense. It probably means that, as I suspected I would be, I'm way off base, and Daniel is safe.

I really do hope I'm as wrong as I think I am. :)
Posted 30 months ago. ( permalink )

jgarber says:

The more you think about it, the more complex the issue gets (or at least feels).

@Molly: The EFF might be a good resource for this. They'd likely have some insight into the issue since Creative Commons is involved.
Posted 30 months ago. ( permalink )

mollyeh11 says:

Rogers Cadenhead weighs in with an interesting comment on my blog. www.molly.com/2007/07/13/virgin-mobile-did-yo u-forget-som... I'm inclined to make more of a fuss about this in order for it to be an educational process for all of us rather than being angry. In fact, I'm actually rather amused by it. And it's not like I've never had bad breath, particularly during SXSW after hours partying.

It'll be interesting to see how this plays out.
Posted 30 months ago. ( permalink )

wjkocik says:

Maybe Flickr needs another photo attribute - a "Model release(s) for this photo are available" checkbox.
Posted 30 months ago. ( permalink )

natalief says:

This is why I have not used a CC license on my flickr. It is a wonderful idea but, for photos with people or property in them (at least half of mine, I would say) I could get in a lot of trouble in instances like this. All of my flickr photos should be © me with all rights reserved. If anyone wants to use one they may, by all means, contact me and then I can make sure that I get any model and property release forms before selling the rights on in any way.

Bear in mind, though, INAL!
Posted 30 months ago. ( permalink )

natalief says:

P.S. SnapVillage insists on model and property release forms for any photos you upload and resell via their site, where relevant.
Posted 30 months ago. ( permalink )

jcarbaugh says:

I guess I'll be the jerk here...

If it is true that it is the publishers responsibility to get model releases, then wouldn't that fall on Daniel? I think posting to Flickr would be considered publishing.

Secondly, I think it is clear that no insult was intended...at least not directed at Molly. The 'Are you with us' and 'or what?' labels appear in the same position for each photo. It's only by coincidence that it lines up with her head.
Posted 30 months ago. ( permalink )

ACME-Nollmeyer says:

Jeremy,

You are interpreting things wrong..

1) A model release is NOT needed for an editorial use. If I created a photo of kids talking on their phones, I could have it printed or even "sell" it to a magazine or newspaper to run EDITORALY, such as talking about how the generation of kids are all connected via technology.

2) If Verizon, T-mobile, etc saw the photo and wanted to license it from me to use in an ADVERTISMENT then I must not license it to them unless I have proper model releases. I could not "sell" the photo for a commercial use unless I had a release.

3) If the kids were minor's I would need thier parent's signature on the release form as well.

Adam N.
Acme Photography.net
MY BLOG

--
Seen in some comments. (?)
Posted 30 months ago. ( permalink )

jcarbaugh says:

Adam, thanks for the clarifications!

On point 2, you state "I must not license it to them unless I have proper model releases." Does that mean it is your responsibility as the person licensing the photo to obtain the model releases or is it the responsibility of the licensee?
Posted 30 months ago. ( permalink )

Peter Bowyer says:

I recommend checking the Photographers' rights guides (for UK, USA and Australia) @ www.sirimo.co.uk/ukpr.php.

I was a bit surprised by this fuss because so long as a particular person isn't the focus of the photograph (as they aren't in the one above) model release isn't needed in the UK, although still recommended. IANAL, so if this is wrong I'd like to be corrected!

This is based on photography (for advertising purposes) I did at a residential event where people were told "By attending you agree to be photographed". Model release forms were used for shots containing minors.
Posted 30 months ago. ( permalink )

Daniel Morrison says:

Wow, I leave the country for a couple days and this happens?!?

Much apologies to everyone involved.

My personal understanding is that CC licensing does not equal or imply a model release. Further reading leads me to the same conclusion, though it is far from clear.

Anyone have any advice (other than reconsidering using a CC license)?
Posted 30 months ago. ( permalink )

lloydi says:

"Are you with us?"

"Or are playing paper, scissors, rock?"

[Molly's scissors win!]
Posted 30 months ago. ( permalink )

mringlein says:

I am so late to the game on this one ... I AM FAMOUS!
Posted 30 months ago. ( permalink )

mringlein says:

I look so sexy tooo --- leave the ad!
Posted 30 months ago. ( permalink )

jgarber says:

@mringlein Hahaha, what did Mexico do to you? :-P
Posted 30 months ago. ( permalink )

Gaetan Lee says:

Hi, I'm an admin for a group called Virgin Mobile - Are you with us or what?, and we'd love to have your photo added to the group.
Posted 29 months ago. ( permalink )

JohnRiv says:

wow... if Martin is late to the game, I'm showing up at the start of the next season... i just stumbled onto this right now... and I'm strangely hungry for another Jimmy Johns sandwich
Posted 29 months ago. ( permalink )

austentayshus2001 says:

The onus of obtaining a model release is on the publisher (Virgin) if it is for commercial purposes, there is no grey area here, the onus is never on the photographer to get hold of a model release.

I have almost completed a Diploma of Multimedia in an Australian college. Every student that undertakes a certificate, diploma or degree of Multimedia is required to show an understanding of how model releases work in relationship to copyright law.

If you do not understand these concepts then you do not graduate.

I think it would be fair to say that at least one of the staff involved with this campaign has an Australian University or College qualification in multimedia.

Australian and International copyright law states quite clearly that regardless of the type of copyright license used, the publisher must get hold of a model release from all identifiable models, there is no onus on the photographer to do this, Daniel is quite safe and has done nothing wrong by not getting model releases.

This subject is a very important for all Flickr users to understand, please do not point the finger at Daniel or any one else that takes photos of people, you may be discouraging people from taking happy snaps of their friends and family when there is absolutely no valid reason to.
Posted 27 months ago. ( permalink )

damph says:

Under Australian law there is a pretty good argument that Virgin didn't need a model clearance in this case. They'd need to be implying that the models were endorsing or sponsoring their product (see s52 and 53 and Trade Practices Act), which the courts have generally only held in very specific circumstances, and so far only in relation to celebrities.

This is why the onus to acquire any model clearance that is needed is placed on the publisher, not the photographer. There's no way the photographer can know exactly how a photo is going to be used, and there are a whole lot of different areas of law that could come into play - defamation, privacy, libel etc. It's up to the publisher to work out if their particular use needs clearance in any of these areas and go back to the photographer/model to get these clearances.

By putting a photo out under a CC licence - even one that allows commercial use - the photographer is merely providing copyright clearance. The licence makes it very clear that no rights other than copyright are covered - it would simply be impossible to make sure all possible clearances for all possible uses in all possible countries had been obtained. So it is up to Virgin (or anyone else wanting to use a CC licensed photo) to make sure their use doesn't require extra clearances, and to seek them out if they do.
Posted 24 months ago. ( permalink )

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Virgin Mobile misappropriates likenesses

Comments

wjkocik says:

jgarber says:

Nguyet.Vuong says:

wjkocik says:

mollyeh11 says:

thraxil says:

wjkocik says:

jgarber says:

mollyeh11 says:

wjkocik says:

natalief says:

natalief says:

jcarbaugh says:

ACME-Nollmeyer says:

jcarbaugh says:

Peter Bowyer says:

Daniel Morrison says:

lloydi says:

mringlein says:

mringlein says:

jgarber says:

Gaetan Lee says:

JohnRiv says:

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damph says:

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