Dump Your Pen Friend

aleeviation says:

hey that's me! no joke. i think i'm being insulted...can you tell me where this was taken.
Posted 33 months ago. ( permalink )

chewywong    says:

where was this? do you think virgin mobile will give me stuff?
Posted 33 months ago. ( permalink )

sesh00    says:

I'm quite suprised that you were not in the least informed that your photo was being used!

The photo was taken on Churchill Road, Adelaide, Australia. I believe that it's being used as part of a national campaign - there are a lot of other slogans and photos being used, I think some of the others are from flickr as well.

As for getting free stuff - it can't hurt to try, but if the photo was released under a CC license that allows for commercial use, then they haven't really done anything wrong.

Virgin Mobile Australia website - www.virginmobile.com.au/
Posted 33 months ago. ( permalink )

aleeviation says:

what does that mean-CC license? how did chewywong get that license on his photos. so virgin mobile hasn't used his photos without his permission or anything?
Posted 33 months ago. ( permalink )

sesh00    says:

When I said CC license I was refering to the Creative Commons licenses that flickr allows you to release your photos under. Although I can't be sure about the photo that is actually being used - it seems that most of chewywong's photos are released under the CC Attribution License, which simply means that anyone can use the image, for whatever purpose, as long as they say that it's chewywong's photo. They have done this with a reference to the source in the bottom corner (you should be able to see it if you view larger).

As for your image being used to advertise a product - I guess it could depend on either the laws in the country that the photo was taken or here in Australia. If you are offended by the caption - then I would definitely contact Virgin Mobile (or perhaps even a lawyer) to discuss what can be done.
Posted 33 months ago. ( permalink )

Barney Wrightson says:

I found the original, and yes it is using the attribution only licence:

Posted 32 months ago. ( permalink )

Barney Wrightson says:

Some other examples...





and maybe


Posted 32 months ago. ( permalink )

Barney Wrightson says:

Thanks for posting the info, we were discussing this issue the other day. Do you think the laws that apply would be those where the photo is published, or where it was taken? My feeling is the former, but I am definitely not a lawyer:)

I think it's pretty rude that they haven't been contacting the photographers either, regardless of the fact that they don't have to. This is why I use the non-commercial licence.

One more (looks like a portion of another on the left too)


Posted 32 months ago. ( permalink )

blakeemrys says:

Woohoo, that's my thumb! :)

I can't really speak for everyone, but most of my photos are licensed as CC attribution, noncommercial, share alike. This was one of the few where I thought "Eh, what the heck - let'em do whatever they want and let's see what happens!" so all I asked for was attribution.

I'm glad I did.

-=-=-=-

As for the model discussion above .. while I'm not a lawyer, my understanding is that it's considered polite to always get a model release before publishing a photo. That being said, there is no expectation of privacy when you are in a public (key word there) setting. That's why they can have cameras in Times Square on New Year's Eve without getting thousands of model releases.

The large settlement for the coffee guy was because the photo was taken during a modeling shoot - not while he was walking down a public street.
Posted 32 months ago. ( permalink )

teacherjamesdotcom says:

Hi,

My name is Damon Chang. I'm the older brother of Alison, who is the girl being depicted in the discussed picture. I am not an attorney, but I am a film producer and my understanding has always been that a model release is needed for any commercial use of images, videos, etc. (ex: "the example of cameras in Time Square is valid, but different because those thousands of people are not "featured" in the video/image, whereas my sister is the only person featured and depicted in her picture).

In this matter, I consulted a few attorney associates of mine. One attorney licensed in Texas who practices in copyright law said:

"The CC license applies to the copyrights--the rights of the photographer as owner of the photo; my understanding is that is does not refer to the rights of the person depicted in the person.
I would contact Virgin Mobile, demand some money, etc. Do it in writing. Address it to their legal dept. The other issue is that she is a minor, so technically they need your parents' permission too.
I actually was involved in a situation like this for a client; it was for a much smaller business. The person in the photo got about $25,0000, but her image was used for a long time in many contexts."

Another attorney from NY said:

"I will look into it. I would first write a "cease and desist"
letter, so if they want to throw her some kind of offer they can at
least find her. Let me see what I can figure out."

I'm speaking for my sister and my family in this matter. We're going to seek out legal counsel and contact Virgin Mobile. My sister is just a kid in high school, and while Virgin Mobile isn't "defaming" her character, this is still not cool. They should have at least let her and the photographer know about it.

If anyone out there is licensed legal counsel and has advice, please send it to damon@teacherjames.com

And I'll keep everyone updated on these blogs. Thanks again to sesh00 in Austrailia for bringing this up to my sister.

D.

(PS: I'm putting this on both Flickr blogs that have discussions about this.)
Posted 32 months ago. ( permalink )

sesh00    says:

Hi D.

What's happened here is a complete disgrace and I'm glad that you are moving forward with this. My own discussion with lawyers (given not in this field - but still) here in Australia have tended towards your sister being entitled to damages for the use of her image without her permission.

I feel sorry that your sister's image was used in this fashion, and hope that the advertising companies involved learn that they can't just do something like this and hope nobody notices.

Just out of curiosity, where else have you posted this?

It would be good if you could keep us in the loop as to what's happening (as much as you can) - and if you need any help you know where to find us!

Cheers,
Brenton
Posted 32 months ago. ( permalink )

Gaetan Lee    says:

guys i have set up a group for this.. initially to compile the photos, posters and original images. but pleae do keep the conversation on this there...
www.flickr.com/groups/379879@N24/
Posted 32 months ago. ( permalink )

teacherjamesdotcom says:

Hey Brenton, thanks for sending this to my sister again.

The only other place I've posted on the internet about this is the other Flickr discussion page (http://www.flickr.com/groups/central/discuss /72157600541608353/).

And the only people I've spoken with are the legal friends of mine. I'll definitely keep you up to date about the ongoings.

So...do you think there's a lot of these ads with other people? I guess the first places we should notify would be Virgin Records and the ad agency behind the ad campaign.

D.
Posted 32 months ago. ( permalink )

Sam Webster    says:

Damon - virgin records is a different subsection.

the ads in question are for virgin mobile.

as for how many ads. each billboard i've seen has different images. there are 2 to each billboard and on train stations there are two billboards side by side to make up 4 panels of the ad.


the greatest way to see the extent of all of this is on their website for the campaign www.areyouwithusorwhat.com.au
Posted 32 months ago. ( permalink )

chewywong    says:

thanks everyone for your concerns on the matter...i'd like to be as informed as possible on this so if you can find out any more of this issue, please let me know.

apparently what i had put on the photo was a creativecommons.org/licenses/by-nc/2.0/deed.e n-us
which specifically says "Noncommercial. You may not use this work for commercial purposes."
Posted 32 months ago. ( permalink )

Panza Verde says:

So, Virgin is in troubles...
Posted 32 months ago. ( permalink )

sesh00    says:

Chewywong,

It actually looks like the original image was release under the cc-by-2.0 licence, which only really requires that a like back to the original image is present. Images release under this licence are able to be used for commercial purposes without asking the author.

You can find a link to the licence on the left hand side of any photo on Flickr (with the text "Some Rights Resevered" in this case.

creativecommons.org/licenses/by/2.0/deed.en

It looks like Vigrin Mobile Australia's advertising company has simply used the Flickr CC Search to find images for the campaign!

Anyway, you should definately be talking to a lawyer about whether or not the way in which they have linked back fulfils the licence requirements. But even more so, you should be talking about the fact that aleeviation's image was used without her consent to advertise a product.

Cheers,
Brenton
Posted 32 months ago. ( permalink )

teacherjamesdotcom says:

Hi, this is Damon again, the brother of the person in the photo.

I wanted to update everyone on what I've been doing on my end.

I've sought out legal representation for our family in this matter. Thanks to "Iasnsand" and his post about treading wisely regarding legal action. I took that seriously since he's absolutely right about being careful.

My attorney in Austin, TX thinks that there is definitely enough here to do some research into. Plus, something to do with international law/rights and the fact that my sister lives in US and the picture was taken in US, means a possible course would be to file legal action in the US instead or in combination with Australian courts. Anyways, he is looking into it.

Right now, he mentioned that I should try and contact or find the other people who have their images on these Virgin Mobile ads in Australia. These people may or may not be interested in what we're doing, but at least they should be contacted.

I'm asking you guys if you have any contact information for other people who have been depicted in this Virgin Mobile ad campaign. I found Scary Andrew's Flickr page, and have contacted him. I'm hoping other people might have information as well.

Anyway, I'll leave my email address again in case anyone wants to contact me in this matter. And of course, I'll keep everyone updated on these blog posts.

Thanks again!

Damon

damon@teacherjames.com
Posted 32 months ago. ( permalink )

babasu says:

Hiya,

I'm Rebecca - owner of the Scary Andrew picture. I'm going to ask for advice regarding this too - perhaps we can have a discussion via email. babasu [at] yahoo.com.

Originally I felt that although contact from Virgin Mobile would have been welcome (i.e. asking permission to use) I didn't mind so much because at least more people would look at my pictures. However, the fact that they have used images without permission of people who are really young is outrageous, so if there is a fight to be fought then I'd like to join in!

Rebecca
Posted 32 months ago. ( permalink )

carwax (if you see Kay)    says:

okay...so how about some help with preventive medicine...which CC license is the best?
I would think it's subjective to the photographer but this really puts a scare into me...
Posted 32 months ago. ( permalink )

sesh00    says:

carwax - if you don't want your images to be used it's best NOT to use the CC licenses. The default license on Flickr is "All Rights Reserved", which simply means that the image cannot be used for any purpose without your consent.

The CC licenses are there to allow people to control what is done with their images, while still giving other people some rights to use them.
Posted 32 months ago. ( permalink )

sesh00    says:

timtak - you could have used the image for a commercial purpose if you wished. The photo was released under a license that allowed that.

The issue is that you would probably (depending on where you live, where the photo was taken, the country that the advertisement is displayed in, etc.) be required to obtain a model release from the person in the photo. The issue is being discussed in the thread linked from the image description.
Posted 32 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 32 months ago. ( permalink )

sesh00    says:

It would depend on where you are (i.e. different countries apply different laws), in Australia - no you wouldn't need a model release for a non-commercial use of the image.
Posted 32 months ago. ( permalink )

Creative Antics says:

For one of the BEST intellectual property lawyers in the country who specializes in photography, contact Ed Greenberg in New York:

Edward C. Greenberg, PC
100 Park Ave.
33rd Fl.
NYC NY 10017
ecglaw@aol.com
Posted 31 months ago. ( permalink )

tuxcomputers says:

Using a persons image requires a model release, it does not matter what the photographer wants to do with their rights. The subject of the photograph DOES have rights regarding if they want to be associated with that product.

You can't just take a photo of Tom Cruise walking down the street and make a billboard "Come Cruise with us". Yes he is in public so it is ok to take his photo, yes the photographer is allowing you to use the image, no Tom did not authorise you to use his image in that context.

It does not matter if you are Tom Cruise or not, the same rights apply to everyone. Virgin are in deep deep do do.
Posted 31 months ago. ( permalink )

outforawalk says:

Folks, as a professional photographer involved in the advertising world, I just have to comment on this situation.

People are on the right track here, "aleeviation" should be seeking legal representation and I can second the suggestion of Ed Greenberg in New York as one the absolute best to call on.

Now to the point I want to make: people allowing commercial usage of their photography on Flickr are suckers being taken advantage of.

Hear me out here. Photography is a great and rewarding hobby but it's also a serious business for some folks. Aside from the legal problems that this photographer is going to have from making this image available without a model release, he is out far more money on lost revenue that his photo has already earned for Virgin Mobile.

When Host ad agency was hired by Virgin to do this campaign in Australia, they were given a budget in the $1M+ range without a doubt. Why not save some of that money by going with some cc-licensed imagery? Why not? Someone will be thrilled to see their photograph on a bus shelter -- we pay them $0, they have cache, it's a win-win!

Don't think for one minute that these images do not have value -- it doesn't matter if I took it or if my grandmother took it -- if Virgin Mobile wants to spend millions to show and promote an image, well aware of the revenue such marketing creates, then that image has plenty of value.

How much of that ad is made up of the image? That copy means little without the photo. Would you say the photograph is worth at least 5% of the total media buy? That translates to $50,000 of a $1M media buy. This media buy is more than that; that image is worth at least 10-15% of the media buy. Our photographer has traded quite a lot of money to have the honor of his image being (ab)used by a multi-billion dollar corporation.

Virgin might be in "deep do do" as a previous writer says, but with all the money they've saved on photography through this campaign, they will probably break even on fees for the attorneys they keep on regular retainer anyway. I can guarantee those attorneys will point to previously established laws in the US and elsewhere that the photographer is responsible for obtaining a model release, and is in the wrong for making them commercially available without one. Virgin won't lose money on this, they are in business to make money -- the photographer who transacted commercially for no money, he will come out of this in serious debt.

People: if you are going to conduct business with your images, remember that is a BUSINESS. There are people who make a living doing this, and we compete more and more with people who aren't interested in making money for their work. Companies are very happy to increase their revenues by profiting off of your work and your investment in your photo gear. Respect the value of what you are doing -- don't be taken advantage of.
Posted 31 months ago. ( permalink )

Chuck Goodenough says:

Watermark everything you post to Flickr and post SMALL (as in photoshop level 5).
Flickr strips metadata upon upload so the images can not be tracked back to the copyright holder (you) The images basically become orphan works once they are downloaded and shared around. orphanworks.blogspot.com/
Protect your work.
Chuck
Posted 31 months ago. ( permalink )

RTSilvado    says:

I should agree with Outforawalk and Chuck. All Rights Reserved is my default cause of those reasons.

Anyway, Virgin Mobile probably has a big legal issue now. I visited the campaign web site and all pictures came from Flickr...

Easy to win in court, at least here in Brazil.
Posted 31 months ago. ( permalink )

Ei Katsumata    says:

Okay, I haven't read the other discussions linked above, and maybe I'm a bit late to this party. But there are TWO issues here, one being COPYRIGHT and the other being MODEL RELEASES.

I don't really know anything about CC licenses, but assuming that Virgin is in compliance with the CC licensing of that particular photo, there is no issue here.

Model releases are another thing entirely. It is the end-user's responsibility to ensure that a model release exists for all depicted people for all commercial uses (i.e. promotion, advertising).

In general, editorial uses are do not require a model release (news, books, magazine articles, etc).
Posted 31 months ago. ( permalink )

hotlipshoolihan says:

I am really amazed by the number of people posting their photos on flickr, people who probably have hopes of becoming professional photographers one day, who know little or nothing about copyright. Knowing how many companies have used flickr photos for their ad campaigns, you still have no idea what license you've assigned to your image? That's insane to me.

And if you're going to be involved in a lawsuit, it would be smart to remove all of your comments concerning the issue from a public forum.
Posted 31 months ago. ( permalink )

littleoslo says:

This give me some thoughts. We need to carefully choose the right Creative Commons Deed. In my case, I have picked “Attribution-NonCommercial-NoDerivs 2.5″.
Posted 31 months ago. ( permalink )

Ayelie says:

The photograph that was used in this ad is licenced as cc-by-2.5; this means that it can be used commercially and derivatives can be made of it (such as the crop and flip Virgin performed on the image). The condensed license text is "You are free to copy, distribute, and transform the work ... to adapt the work ... you must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work)". They are entirely within their rights to use it in terms of *licensing*.

Note especially the extended legal text:
*Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:
**to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works
**to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works.
[above are only extracted sections, not entire text]

This means that Virgin are entirely within their rights to use the image in an ad (the Collective Work), to display the ads publicly, etc; they are attributing the author with a URL at the bottom of the image, and thus are respecting the "Attribution" aspect of the license.


As for model releases, that is another matter. I am only knowledgeable in the area of CC licenses, not model releases, so I won't comment on that aspect.

However, personal photos (in my opinion) should not be licensed freely if you don't have permission from the people pictured. If you look at a photo and think "I wouldn't want this on a billboard" or "The person in this photo wouldn't want their picture on a billboard", license as All Rights Reserved. It avoids messy situations such as this.


Do realise, though, that if you license your image as "Attribution-NonCommercial-NoDerivs 2.5" images can't be used on other websites. I've had three of my images used on news articles or websites, which is exactly why I licensed them as "Attribution-ShareAlike-2.5", or cc-by-sa-2.5. This license also allows them to be used on places such as Wikipedia, where they significantly contribute to articles and are seen by millions of people (if the article is popular).
Posted 31 months ago. ( permalink )

autodetailer    says:

Do you think that it is probably safer now to place an "All Rights Reserved" notice on all our photos?

Blog Me
Posted 31 months ago. ( permalink )

yeahyeahcandy says:

Maybe you can help me here. But in my opinion the only person who is in real trouble is the photographer, not Virgin. The Photographer provided this photo for commercial usage without asking the model for permission. So the photographer has done the mistake in first place.
Virgin is in charge to double check the situation of the photo as well, so they done a mistake too. Personal right are above property right. The photographer should be hold responsible for offering this photo for commercial usage.

Correct me if I am wrong.
Posted 31 months ago. ( permalink )

*****\\MOXXO//*****    says:

Maybe im wrong but Flickr is one of the most view website in the world and at the same time the best free imagebank in the world. Most of the people like me just post pictures to get comments and to show the work and i think this is the main thing in flickr. Anyway a lot of people come to flickr to get good res pics and to use it on works because they dont have water mark and because its easy to get download them without asking.
Conclusion is like going to a store that doesn't have the alarm or any security system only a sign saying you can or can't steal. One thing is should Fickr protect the members, or should the members use only flickr to post thumbnails or trust on the copy rights thing?

I'm a designer and i know the importance of copy rights and sometimes i have my questions, but does the common people that post their pictures on flickr should know all this stuff. Should Flickr help the users to protect their work or become a IMAGE BANK website?

Just some questions that i have and some problems that i see on this thing of copyrights of pictures or any other stuff on internet....
Posted 31 months ago. ( permalink )

stockpixdotcom says:

I completely agree with several comments here that the Advertiser and also potentially the Ad Agency are in danger of serious liability in a lawsuit in either US and/or Australian courts from the persons depicted.

I also suspect that all of the photographers, though not the deep pockets here, might also have some danger of lawsuit liability from the persons depicted and mildly defamed by this ad campaign.

From my reading, this creative commons license gives absolutely zero protection to the photographer in this situation. So, photographers might want to think long and very hard before posting non-released photographs under these CC licenses regardless of how well you know the person depicted. Property Releases are also sometimes needed as well.

I second the watermarking suggestion and all the advice against CC licensing as well. Copyright, and All rights reserved, is your best friend, if you ever want to make a buck with your photography. Orphan works (mentioned above) will probably never earn you a dime without seriously difficult and generally unlikely legal wrangling.

Lawyers do love slam dunks and this case sure looks like one to me. Hopefully, this case will make a group of people some serious money and can be a cautionary tale for both photographers, and skinflints, those ad agencies and companies out to save a buck up front with "free" but legally unsafe imagery.
Posted 31 months ago. ( permalink )

johnwarde says:

Guys guys, guys! All valid arguments about the use of the discussed image above but if you take a step back for a second ... you have given out a lot of information about the girl in the discussed picture that an unsavoury person could use to do possible harm to the girl. I suggest that this discussion should be removed or at least the personal details. People get caught up in these types of community website and don't think before they speak.
Posted 31 months ago. ( permalink )

sesh00    says:

johnwarde, if you site a particular post I will delete it upon request of those involved. Before then, I don't really want to tamper with the public discussion of something that is still up in the air.

everyone else, read the forum post linked to in the description of the thread (just jump to the second page) for some proper explainations of the laws involved. Lets not foget that this is happening in Australia - most likely outside the jurisdiction of any US laws.

As for those talking about the photographer being to blame, it should be noted that the CC-BY-2.0 makes no claim that a model release has been signed, or that the image is actually fit for commercial use. It simply states that there is no restriction against commercial use. The licence is on the artistic nature of the photo, not what's in the photo.

autodetailer, I really like your photo stream - and yes, if you don't want your images to be used without asking you first, then All Rights Reserved is the way to go. The CC licences are there simply to allow you to easily make your photo available for use, if that's what you want to do.
Posted 31 months ago. ( permalink )

Paul Panayiotou says:

Everyone....never ever be flattered that a photo of yours is used commercially, whether it be in an editorial publication, an advertising campaign or any other form of commercial activity.

Flattery will expose you all to serious exploitation and financial risk.

Your photos have a commercial value...don't give them away and if you choose to ignore this advice than at the very least ensure you fully understand the terms and conditions (contract) that you automatically agree to when handing over your images.

You must also understand the laws of libel and defamaton which may arise from the mis-use of images featuring people...the featured person can sue YOU!

There are many instances (photo contests, websites calling for free images, magazines etc) where the photographer is made to indemnify the user against any law suits arising from the use of their image

How about that...they use your image for free, maybe even sell it on to third parties for a profit, and you pay for any law suits!

Set your licenses to "All Rights Reserved" and simply enjoy Flickr without the risk of exploitation, without the risk of expensive law suits and without effectively handing over cash to an already rich corporate

My 2 cents worth
Posted 31 months ago. ( permalink )

ohh_doh_oops_sorry says:

Hi, this has been an interesting read, and I am probably coming in far too late on the debate, but I am an Aussie lawyer that specialises in this stuff.

Yes, what Virgin did is wrong under Australian law.

Whether or not use of the photo constitutes a breach of copyright depends on what the CC licence says (I've not looked at the CCL but if it says any use, well, doh, that means any use).

However, everyone is quite right in asking about the model release. We have a thing here in Australia called passing-off which is, essentially, the right to protect yourself from falsly endorsing somebody else's product. By showing the girl the suggestion is that she is endorsing Virgin Mobile.

Its also arguable that there could be a breach of privacy element to it (expanded by the recent UK case with Michael douglas and Catherine Zeta Jones) but that would be a harder case to make out.

Most of the other images are probably less likely to be a problem for Virgin.

I am kinda surprised that Virgin would be so stupid as to do this and not see the consequences (nor ask any of their army of lawyers what the implications might be), which makes me wonder whether you are all playing into their hands by threatening legal action - perhaps this is the beat-up and extra marketing they are looking for?

Court case in the US? are you insane? How much money do you want to burn? Get a savvy Aussie lawyer to send a letter and make a demand - work out what you want (and for god sakes talk to your parents about this first) and then contact virgin and start negotiating.

Its as simple as that.
Posted 31 months ago. ( permalink )

jbimages - busy with other things    says:

There is a Photographer's rights website written by an Australian solicitor that covers rights in New South Wales, Australia, although he does cover some differences in the laws of other states. He rights on Virgin and these photos for the commercial case study under the Commonwealth Trade Practices Act.
Posted 31 months ago. ( permalink )

jbimages - busy with other things    says:

Chuck Goodenough opined a couple of weeks ago in this thread that Flickr strips metadata on upload. That is simply not true. Flickr strips metadata onimages it resizes but not the original. It does keep the metadata under 'More Properties" where it can be seen by anyone who cares to look. Check my photostream The small images have no metadata, however the original has intact metadata.
Posted 31 months ago. ( permalink )

solidox_ says:

So, what you're saying is that you are bothered that your photo being used although you released it unde CC licence ?

My question is, why did you release it if you don't want it used and abused? That's the whole idea about CC. The fact that information, music, photos, etc, are free for anyone to take, modify and make something nice with it, that hopefuly makes you proud too.

Sure, it may not be the case with your photo, but I'm sure Virgin can afford a few hundred $ for a picture, they weren't doing it to save a buck. To me, what you are doing is wrong. You released a photo and then you press charges. It's like I'd give you a present and then call the cops saying you stole it.

My point is: CC is not a trend, it's a way of fighting back the money-oriented world we live in by giving stuff for free to the world. If you don't want that, just Rights Reserve it and that's that.

But I do understand your quest to get something out of this all. 30k$ is not bad. Hell, get all they got as far as I care.
Good luck.
Posted 31 months ago. ( permalink )

Kris_Syd says:

Im hazy as to WHAT the correct license on Flickr stops this from happening! I want it applied to ALL my shots so if they are used at least I get consulting.. Copyright is FAR too gray I think..
Posted 31 months ago. ( permalink )

Barney Wrightson says:

Solidox: The issue is not the cc license the issue is the model release. The cc license is saying i don't mind if you use my (the photographers) work for whatever purpose you se fit. It is to to with the copyright of the work ONLY. Model releases are there to protect the rights of anyone identifiable in the photo. If a commercial company wants to use ANY photo to promote a product, it is their resposibility to ensure that they have model releases for anyone in the photo. This is completely separate from the issue of the copyright. CC license adresses only the copyright and not the model release.

I think what really needs to come out of this issue is for flickr to add a "model release available/obtained flag", separate to the licensing flag. This should always be marked by default to be false and then if someone wants to explicity state that they have a release then they set the flag. Then any commercial entity wishing to use the photo then has it explicitly stated to them whether they still need to obtain a release for anyone in the photo or not, and in either case they should contact the photographer to either get the already signed release, or in the case where there isn't one to track down anyone in the photo to try and obtain one.

Kris_Syd: If you don't want it being used commercially, choose the non-comercial option. If you don't want anyone using it (eg not-for profit/individuals etc as well as commercial) leave it all rights reserved.
Posted 31 months ago. ( permalink )

Chuck Goodenough says:

JBimages said above "Chuck Goodenough opined a couple of weeks ago in this thread that Flickr strips metadata on upload. That is simply not true. Flickr strips metadata on images it resizes but not the original. It does keep the metadata under 'More Properties" where it can be seen by anyone who cares to look. Check my photostream The small images have no metadata, however the original has intact metadata."

This is great news for the original! Thanks Jbimages for pointing that out. But it still depends on people entering the info. AND the remaining sizes are Orphaned and if used on a blog or wherever they can be taken again and again with no record of who the copyright holder is if there is no remaining meta record or watermark.
Flickr is great fun but beware, the images you upload can easily become orphaned with no way to effectively trace copyright ownership. ONLY THE ORIGINAL SIZE HAS METADATA & THEN ONLY IF YOU ENTER THE INFO BEFORE UPLOAD.
Posted 30 months ago. ( permalink )

Chuck Goodenough says:

As an example, Flickr is using this image (sans metadata) to advertise it's new uploading features
Flickr blog
Source of Flickr blog image without metadata

If someone chose to swipe the image directly from the blog page instead of clicking in it to locate them, the owner info would be gone! No watermark, no metadata.
I understand the Flickr agreement allows them to use images for any reason but I don't think they will be using mine because of my watermarks. Chuck
Posted 30 months ago. ( permalink )

Jeff (xnine)    says:

It's one thing for them to use the photos without notifying the photographer, but the captions they put on the photos are almost always insulting. Some refer to the subjects as slutty, or smelly... this one comes off a bit racist.
Posted 30 months ago. ( permalink )

cunparis    says:

racist? You got to be kidding me.

Since the brother is no longer posting, I assume the lawyers told him to keep quiet. I wonder if we'll ever know the outcome.
Posted 30 months ago. ( permalink )

Jeff (xnine)    says:

no, They took a picture of an Asian girl in a stereotypical pose and imply that she must be from a foreign country (pen friend/pen pal) then suggest that whomever should dump her as if the phone they are selling makes this girl obsolete.

So no, I didn't say it was a bit racist for a laugh. Just pointed out that I think this is questionable as advertising.
Posted 30 months ago. ( permalink )

teacherjamesdotcom says:

“Hi, I just wanted to update people on the situation with my sister's photograph.

We have retained legal counsel in the US and have sent Virgin Mobile US and Virgin Mobile Australia a formal demand letter requesting compensation for the use of her image in these ads. I feel that it should be fair that they compensate her since they used her image for commercial purposes.

Here's my email address in case any other photographers or models from the ads want more information:

damon@teacherjames.com

Any legal queries can be forwarded to:

Ryan Zehl
c/o Fitts Zehl LLP (Houston, Texas)


Thanks, I'll try keep everyone updated as we go.

Damon”
Posted 30 months ago. ( permalink )

spartanhelmet says:

Why is getting attourneys for a legal battle the first thing on the mind of many Americans? Everyone knows it's the reality of the situation when it happens so much more often than any other stereotype. It's a shame sometimes.

In Australia, we'd have a laugh and take the free 15 min of fame for granted. I'd be all too happy to get a snap of me put up by AT+T, Sprint or even Virgin in the US :) As soon as I get some happy snaps uploaded at some point, fingers crossed.

cunparis is on the mark too - beyond a reference to foreign-ness of foreign penpals, there isn't a spot of racism there. Anything racist in Australia is dumped quickly anyway... a slight bit can kill a campaign.

He's also on the mark with Damon keeping to what the lawyers say - why else is the last post he made the only one with speech marks at both ends? Out of an email IMO.

All I can really think is that this will be an interesting and necessary decider on creative commons for sure.

I'm not supporting either party, because it's easy to assume as a bystander. GL to both sides of the argument - the Chang attourneys and the VM Aus lawyers have a toughie here.
Posted 30 months ago. ( permalink )

RachelLKing says:

Get a Grip! It’s a cute pic and the slogan is NOT derogatory. It’s embarrassing how greedy some people are. Most people, normal people, would think it is really cool to get such a cute pic of themselves on a billboard (clean content, obviously). But not you—you want a big fat check for doing nothing. I hope they pull your pic and compensate you appropriately, i.e., $0.
Posted 29 months ago. ( permalink )

Evil Howard... says:

Hi....

I'm not sure what people are saying is derogatory about the Virgin Mobile advertisement?

It is a cute girl holding up a "V" (V for Virginmobile), and it says dump your pen friend...promoting free virgin to virgin text messaging....the joke being no more writing notes/letters, because texting is now free...

i think it is a cute ad with a cute girl.....if the photographer screwed up by placing the wrong "restrictions" on the photos use, well, next time pay more attention......and lastly, if you don't trust your friends to use the proper restrictions on photos of you, then don't pose for photos for them....Best wishes....

If I am missing something I would like to understand.....is it the advertisment that is insulting? if so, how? Or is it the fact that they used this advertisment with out seeking direct permission of the photos main subject (you)?
Posted 29 months ago. ( permalink )

Evil Howard... says:

It seems the girl in the photo may be able to pursue a lawsuit against the photographer. It is the photographer who took the photo, posted it online with out the "models" consent to unlimited commercial use. tsk tsk tsk....
Posted 29 months ago. ( permalink )

Evil Howard... says:

Instead of contacting lawyers, perhaps they should be contacting modeling agencies for this girl....

this would be much more productive....
Posted 29 months ago. ( permalink )

Dr Snafu    says:

Agreed, it's the photographer's fault for posting it under that kind of license.

Besides, I don't really see what's so insulting about the ad. Is it the word Virgin?
Posted 29 months ago. ( permalink )

matthewtrevithick    says:

Franky, if anyone should be signing a model release, it should be the guy who took it.

And why don't you take your 15 minutes of fame? Show your friends the photo, and go 'Hey thats me!' Your reputation is only getting worse, by immediately choosing the 'sue' option.

Suing them won't make the ridicule go away, it will just make the ads go away.

Oh by the way, your Virgin Mobile lawsuit, made the Associated Press. So there goes a little bit more reputation.

www.msnbc.msn.com/id/20896643/
Posted 29 months ago. ( permalink )

thedogsname says:

Actually if this is to take place in an Australian court , Chewywong will have to be careful of a counter claim by authorities against himself for photographing a minor without written or parental consent in a public place. An act that is currently illegal under Australian anti-peadophile laws. The fact that he then publicly dissemintated such photos could also bring him some grief.

Personally I think the whole thing is a crock of shit, the campaign was not defaming, and while maybe they should have asked, the fact they didn't will test CC as a copyright law especially when posting pictures of people. And while the courts will probably award her some money, I bet Virgin Mobile will then go after Chewywong for his failure to get release and miss authorisation of CC.

The question is, if they apologised and took down the posters, would they family let it lay...or do they want the money?
Posted 29 months ago. ( permalink )

flow_aus says:

SHOW ME THE MONEY!

... of course it's about money.
Posted 29 months ago. ( permalink )

Daffyd, the only says:

In the end, we all get to pay just that little bit more because of the USA's litigious society. I'm sorry to say that Australia will probably follow like we have with most other things. Can I sue for the existence of rap or hip hop?
Posted 29 months ago. ( permalink )

lbeclky says:

hey, i just read this issue on msnbc.com and i've also read all the posts on here.

in my opinion, i agree with a previous post by 제프리 (xnine): "no, They took a picture of an Asian girl in a stereotypical pose and imply that she must be from a foreign country (pen friend/pen pal) then suggest that whomever should dump her as if the phone they are selling makes this girl obsolete.."

when i first saw the ad, i actually thought the exact same thing. it did come across as stereotypical and a bit insulting. i also agree it was wrong that it was used without her permission. i could see why the girl would be upset and embarrassed.

asian pen pals? asain girls flashing the peace sign? seemed stereotypical to me. plus, virgin to virgin? kinda insuates that young looking girl= virgin. might as well say, "dump your habitually-peace-sign-flashing asian pen pal and starting texting."

i put myself in her position and i would be bothered too. i may be wrong about the whole thing, but thats what i picked up upon first seeing it.
Posted 29 months ago. ( permalink )

mrhollygolightly [ Joel Aron ]    says:

wow.... this is crazy. just catching up with this. found this link on lightstalkers.org (site for professional photographers who can't stand issues like this)

www.smh.com.au/news/technology/virgin-sued-fo r-using-teen...
Posted 29 months ago. ( permalink )

refrakt says:

@ thedogsname: Her 15 minutes of fame. If she's so concerned about her image, why would you draw more attention to it? Unless, of course, you were in it for 'monetary gain'. What a joke...
Posted 29 months ago. ( permalink )

psnedal says:

sue sue sue, no wonder america is univesally hated.

Dont post your pic on the web if you want no one to see it
Posted 29 months ago. ( permalink )

kaarmu says:

I don't understand why this has come back to "America" as a whole. This is the issue of one girl and her family, not the nation suing a company. It amazes me how people are so quick to judge others even though we aren't in her shoes, and don't know exactly what happened. Don't think that just because one family thought this was the right thing to do that all Americans would agree. Everyone is entitled to their own opinion, no matter where you live!
Posted 29 months ago. ( permalink )

mariellen m says:

psnedal - I don't think the issue is that people can see her picture. If you read the posts above - the issue is that she is a minor, that Australian copyright laws have been unambiguously broken, that she has been portrayed endorsing a product that she may not endorse and has been embarassed by the context that the advertising portrays her in. I do think being sued by a criminal because they fell on your knives while breaking into your house is ridiculous. I think suing because of the reasons this young girl is suing Virgin is actually OK. Virgin can afford to use paid models who agree to be portrayed in this way ( as well as paid photographers) for work like this. It's more than a bit dodgy in my book.
Edit - whether or not the laws span the nations involved is something for the lawyers - one of which I am not. I would be just as upset as she is if someone took a photo of me from a website and used it to advertise, say, cigarettes. And I would consider legal action could I afford it. At least to have my face removed from endorsing a product I don't necessarily endorse. Anyways...
Posted 29 months ago. ( permalink )

Daffyd, the only says:

Someone remind Texas that our Prime Minister went to war with your President.
Posted 29 months ago. ( permalink )

tirralirra says:

I agree that the ad agency should have gone beyond the legal minimum and informed the photographer they were using the picture. And they should have complied with laws about the permission of the model to endorse the product.

In big Australian cities an Asian face is not usually read as 'foreign'. She's just a happy young girl-next-door type. Exactly the sort of person that Virgin mobile wants to appeal to. No racism in this.

It's clear from some comments above that different people see racism differently.

And on the point about American lawsuits -- Australians usually roll their eyes when they see examples of Americans taking out lawsuits. Here's another one. So, yes, the actions of an individual family DO reflect on the reputation of the country as a whole.

I REALLY hope that Australians don't become as litigious as Americans.
Posted 29 months ago. ( permalink )

Karlman says:

I just read the news article on msnbc.com about this lawsuit. It is very interesting to then find this original discussion that lead to that story.

Since a lot of people who read this are now well versed with licensing laws let me ask a question.

How can the paparazzi take photos of celebrities and sell them to various tabloids without the consent of the subject/model?
Posted 29 months ago. ( permalink )

tricherson    says:

This isn't about American litigiousness. Bottom line is that Virgin Mobile is using these images to promote their product in order to make money. If you find it legitimate for Virgin to user these pictures to make money, then why is it wrong for the "models" to expect to make money as well. While you might find the publicity alone to be enough compensation, others want a share of the profit gained from their images.
Posted 29 months ago. ( permalink )

johnnybaus says:

Now it's on News.com.au

www.news.com.au/business/story/0,23636,224567 48-462,00.html

A photo of an Asian girl isn't raciest. They are everywhere here! Hell.. half my friends are asian!

Yes, we all hate how much Yanks (read:Americians) sue, but Virgin are being cheap biarches, and soon there could be no paid models! Who would we look to to make us feel bad about ourselves then!
Posted 29 months ago. ( permalink )

johnnybaus says:

By the way, when I first read the story I thought it would be some ugly nerd girl... making fun of the pun "Virgin".. but aleeviation is HOT HOT HOT! When ur mega rich, come to Australia and we can go have some tea and some stimulating conversation.
Posted 29 months ago. ( permalink )

ImageMonkey says:

@Karlman, there is a difference between using an image to sell a product and selling an image. You need a model release (consent) to use a persons image to advertise or sell an product, but you can sell a photograph of a person or a magazine with a photograph inside without consent. - at least this is my understanding.
Posted 29 months ago. ( permalink )

thedogsname says:

One would also have to decide if the girl is legally a model. Is she in fact a young woman who's livelihood is threatened by Virgins use of the image, and/or who's primary source of income is her "looks"?
If so, then did she in fact recieve compensation and offer a release for the original photo? Or is Chewywong also in a position to be libel for damages and misuse of said image.

I agree with the legal advice above, thei will never get to court if the young lady's legal counsel has any sense, it will be settled for an undisclosed amount, a retraction, and an apology. Virgin will laugh its way to the bank with all the free publicity, the young lady will now go to college and risk being labelled the "the virgin girl" so will lose her anomymity completely (a contentious issue in itself given that the ad campaign was not brought to her attention by anyone who knew her directly) and the courts and media buzz will move on to the next "big deal"

If the young lady really does decide to press ahead with a court settled matter instead of an out of court settlement, then Virgin will bring its retained heavy hitters to bat...and while I do not doubt she will still win, the tarnishing effect on her, her church and her church counselor may ultimately not prove worth it and in fact do the very thing she is so opposed to.
Posted 29 months ago. ( permalink )

Galadar says:

Virgin were being cheap - using "free" photos. But it's wrong, legally and ethically, to use the photos for a commercial purpose and others have commented about the "endorsement" factor and the difficulties incurred by the experience damaging Alison's reputation and exposed her to ridicule from her peers and scrutiny from people who can now Google her, as the family alleged in the lawsuit.
So Virgin should simply make a reasonable settlement offer, and to anyone else it has troubled, and learn its lesson. Next time maybe they will pay models and not try to be so cheap!
Posted 29 months ago. ( permalink )

UncoAussie says:

www.smh.com.au/news/technology/virgin-sued-ov er-photo/200...

I actually think the opposite - give it 3 months, everyone will forget about it. Everyone always does. How celebs become d-grade then fade into existance? !!

If its worth anything, I think its a great photo. You got a great smile!
Posted 29 months ago. ( permalink )

teacherjamesdotcom says:

Hi, we've obviously been keeping up with the news and with these boards. I'm not going to post often because I shouldn't. But I do want to put up some responses to a few of the previous posts.

Some might think that we are suing for money. I just want to bring up these points.

1. Virgin Mobile and the ad company did something wrong here. They took ordinary people's photographs, put them up in an ad campaign, and didn't notify anyone. I've posted before about what possible thinking went through the heads of the ad company and managers when someone MUST HAVE asked, "...shouldn't we notify these photographers that we're using their picture?" And someone at their companies said No, and had a justification for it.

In our opinion, that is wrong. Before bringing on legal representation, I had sent them a complaint letter, asking them to explain the situation. Before filing suit, our attorneys sent them complaint letters to explain why they acted as they did. And everytime back, their "corporate" response was: We did nothing wrong. We acted in the faith of the CC License. We are on the side of creativity (even the ad company started a new thread on FLICKr saying they are just creative, etc.).

In my opinion and our opinion, this is not adequate by any means. It's a big company, sidestepping normal procedure (like notifying people) to save money. Justin didn't actively seek out Virgin to sell his photos, just like 100 of the other user images they pulled, didn't actively seek out Virgin, or any commercial entity.

2. If they are genuiely HONEST about trying to promote creativity among photographers, ad campaigns, etc. Why wouldn't they contact the photographers then? The CC License 2.0 stipulates that you need to attribute the photographer and location of the photograph. Just putting someone's Flickr page on the bottom left hand corner doesn't attribute the photographer's name OR the location of the photograph. If they really wanted to help photographers and spread the word, putting "image by CHEWYWONG on FLICKr" doesn't really give a lot of exposure to Justin or his photography "talents", does it?

They made a clear decision to bypass notifying photographers (even though CC 2.0 talks about correct attribution) and of course they didn't contact anyone within the images.

3. She's a minor. And she's a girl. And her image was FOUND in Australia. By a complete stranger, who just happened to see it at a bus stop. Wouldn't that make you feel uncomfortable?

She didn't consent to this. Yeah, it's possible my sister might have been excited to be part of a Virgin Mobile campaign. And no doubt it can be seen as 15 minutes of fame by some. But, the point is, she wouldn't have said okay to this image of her, portrayed in this way. I guarantee you my mom would have never said okay to Alison's picture being put on a billboard in Australia. There's no point for us. Alison's not an aspiring actress, she's not an aspiring model. Why in the world would we want to expose a 15 year old high school student halfway across the world to sell phones for Virgin Mobile?

And now, imagine that one day someone shows you an image of her halfway around the world, selling phones for Virgin Mobile, with that goofy picture. With all the stuff being written about predators online and stories, wouldn't that make you a little uncomfortable? It definitely made my mom uncomfortable. And as her brother, it makes me angry. What stops another company or Virgin to do this again? Pull pictures elsewhere. For another ad. It's just not right. And Virgin's response is...NOTHING. Nothing stops us from doing this again. Nothing stops another company from doing it. Because nothing is wrong with what we did. In fact, we are promoting creativity. We are helping Justin and my sister, and other photographers.



I disagree. My mom disagrees.

And so, we filed suit. And for me and mom, we are glad that this story is gaining exposure. People need to know about the Creative Commons attribute and EXACTLY how to use it. Hopefully, it gives people some pause when they think about all the pictures out there on the internet and all the people that just posted pictures to share with friends and family.
Posted 29 months ago. ( permalink )

'ju:femaiz    says:

erm, to all complaining about the "copyright" issues. There are none. At all. The photograph was used as per the licensing contract.

As to the consent of the model, that's where the courts will have fun.

Finally, on the issue of racism, those who think that it's racist would have to be in a society of very few people from Asia. To me it was the girl who was ditching her pen pals.
--
Seen on smh.com.au (?)
Posted 29 months ago. ( permalink )

drewbytes says:

When you lose the court case and costs get awarded against you or Virgin counter-sue you'll be deep in the poop. Right or wrong, it's nearly always the mob with the deeper pockets that wins - I know this from experience being involved in a legal battle with some big companies. Have you thought about the consequences of losing a legal battle? You and your family could lose everything!
Posted 29 months ago. ( permalink )

thedogsname says:

He brothers recent comments are going to open a storm...she is only 15. That makes her in Australian courts not only a minor but below the age of consent and Chewywong is now libel for charges of disseminating images of under aged children. Since he did not have her express permission or that of her parents to post her picture on the Internet (or did he? which will of course change everything) his original action will likely be viewed as one in which the courts may press for paedophile charges...or the Virgin legal counsel may in order to smoke screen the issue. (It's what I would do)

I am starting to feel very sorry for the Church counselor and his innocent albiet naive action...I hope he is seeking independant counsel to protect himself?
Posted 29 months ago. ( permalink )

Rich n' Flip    says:

"She's a minor. And she's a girl. And her image was FOUND in Australia. By a complete stranger, who just happened to see it at a bus stop. Wouldn't that make you feel uncomfortable?

She didn't consent to this. Yeah, it's possible my sister might have been excited to be part of a Virgin Mobile campaign. And no doubt it can be seen as 15 minutes of fame by some. But, the point is, she wouldn't have said okay to this image of her, portrayed in this way. I guarantee you my mom would have never said okay to Alison's picture being put on a billboard in Australia. There's no point for us. Alison's not an aspiring actress, she's not an aspiring model. Why in the world would we want to expose a 15 year old high school student halfway across the world to sell phones for Virgin Mobile?"


Yet the picture was publicly available on Flickr for all to see, not only that it had a completely open license attached to it. Is your mum happy that millions of people can browse flickr and see that photo? The photographer should not have released the picture publicly if you have a (valid) worry about who will see the photo. Set it private, send guest passes to those you want to view it, and only ever set photos as public when you as the photographer don't mind people seeing, and know that everyone in the picture is the same. As for copyright protection, don't set it to such an open license. Simple.....

Morally the advertising company virgin hired is in the wrong, anybody could see the girl is underage. But legally, they may pay out your family and then go after the photographer, who from what I can tell is a friend of yours. How will you feel if this ends up hurting your friend financially? I would walk away from this as a lesson in knowing exactly what you are doing, and reading the fine print.
Posted 29 months ago. ( permalink )

camtang83 says:

This is so wrong. Virgin used a photo of a girl from another country - the US. This photo was taken not for an ad. It was taken for a personal reason.

Good luck to Alison's family in their lawsuit.
Posted 29 months ago. ( permalink )

Rich n' Flip    says:

Also an interesting blog post about this whole issue about copyright.

fishbowl.pastiche.org/2007/07/10/copyright_vi rgins

This guy did talk a lawyer in Australia, who said that they may be in trouble considering the person in question is under 18. Maybe you should also talk to somebody in our copyright agency....

www.copyright.com.au
Posted 29 months ago. ( permalink )

jakerome    says:

The Creative Commons license requires attribution, not notification. The photographer has certainly not had any rights violated here, he explicitly licensed it in such a way that it could be used commercially with any further permission.

You sister has a beef, but I don't get why you're suing Creative Commons-- all they did was provide a license that the photographer used. Further, by suing Creative Commons, you've gone form being a hero to a goat instantly. No one is wishing you well anymore after you had gotten so much support from Flickr.
Posted 29 months ago. ( permalink )

swallowtailjp80 says:

The aussie vitriol and Virgin plants accusing the victim of profiteering are sickening. The ad is clearly racist, there is no other reason to use the image that way. The ad campaign was fly by night and they should pay, big time. They had to know that doing something unprecedented like this required them to cover all their bases, and they did the opposite.

The photographer goofed but should look into filing suit against Yahoo since he seems to have chosen a license he didn't fully understand.
Posted 29 months ago. ( permalink )

johnleesandiego    says:

Hey - isn't that the crazy Texan girl who is suing all sorts of people because she is embarrased by what she looks like? If you don't want your business all over the internet, don't post it all over the internet. Read your terms of service on flickr.
Posted 29 months ago. ( permalink )

djsam_spade says:

Sorry guys, but your photo was on the net, Doesn't matter that your sisters face is been used, when you sign up to flickr your given terms and conditions.
You chose not to read them, therefore it's not the resposibilty of Virgin. You guys stress too much, how on earth is that a racist photo...? honestly ???? The funny thing is that People always seem to say "it's not for the money" which i think is a complete load of crap, now everyone is telling you to go through the american courts because you guys sue for everything over there even a pair of lost pants from a dry cleaner ( did they really cost $15000000 ? )
it's your mistake for not reading the rules of the site. Fine she's a minor but that's not to do with Virgin, the Photo is on a Photo Sharing website, therefore it's a free for all with out really needing permission to use the photo.
If you were that unhappy with the photo, you should've never posted it up
Posted 29 months ago. ( permalink )

djsam_spade says:

and to you swallowtail why on earth should yahoo be sued for the photographer not understanding the terms, they didn't force him to sign it, there was no gun to his head, wake up knob jockey ( better not say that, i might be sued). Theirs no way that this phot is racist, insulting, and how on earth does your sister get "teased" as reported in our papers, the Photos in Australia, and your Sister is in Texas.
i think it's sour grapes
Posted 29 months ago. ( permalink )

dj_nrg_1 says:

Where's the racist connection. Geez, some of you right-wing bleeding hearts liberals see racism on every street corner.
Rule of life 1. If you don't want people looking at your photo then don't stick it on the internet.
Rule of life 2. The photographer is responsible for obtaining the model release.
Rule of life 3. The photographer had no right to upload and release the photo under a CC license without the approval of the model - and as she is under 18 the parents.
If it was me I'd be suing the photographer for distributing the photo.
If I was Virgin I would bring a cross claim against the photographer. I suspect any judge is gonna see it the same.
As for the ad campaign I think the image fits the text and I see no embarrassment, degradation or humiliation.
Posted 29 months ago. ( permalink )

jonpdixon says:

If people in the US thing the ad was derogoraty or racist, then that says something about the US. As an Australian, I look at the ad and see a girl from Virgin's target market, happy to be able to text instead of write. The fact that some Americans see something else shows us their stereotypes, not the ad's.

It would still have been nice for Virgin to contact people, but to speak about compensation and use ideas from US laws is a bit odd. If you want your images to stay with friends, or within the laws of your country, don't put them (or let your friends put them) on flickr!
Posted 29 months ago. ( permalink )

Adderley Family says:

Virgin can use a picture of me anytime they like.

Go for it guys!
Posted 29 months ago. ( permalink )

djsam_spade says:

Most definately !!! if they used me i'd be happy, i'd ask em to put a sillier photo up of me !!!!
but hey i guess we're alot more laid back and can see the funnier things in life !
Posted 29 months ago. ( permalink )

hughevans says:

Now there are suing Creative Commons? That stinks!

"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."

www.smh.com.au/news/technology/virgin-sued-ov er-photo/200...
Posted 29 months ago. ( permalink )

Evil Howard... says:

TEACHERJAMESDOTCOM:

HAHAHAHA..............it looks like the attorneys on both sides are the real winners in this case.

If you select to share your photos, that is your issue....

You and your Mother should be pissed at the photographer that just dumped a FULL SIZE photo on a public website and granted unrestriced use of it. I wouldn't do that to my young relatives/friends!!!!! Not to mention, the full size photo is STILL ONLINE!!!! Have you asked him to remove it???

There are ways to lock photos, keep them private, share them only with friends, and to make them "all rights reserved", if you think a photographer is clueless of this, don't let them take your photo with out telling them don't put it online...

It also helps to only post smaller sized photos....SHAME ON THE PHOTOGRAPHER for exploiting this young girl!!!!! YOU SHOULD SUE THE PHOTOGRAPHER!!!!
Posted 29 months ago. ( permalink )

'ju:femaiz    says:

Cited from swallowtailjp80:

The aussie vitriol and Virgin plants accusing the victim of profiteering are sickening. The ad is clearly racist, there is no other reason to use the image that way. The ad campaign was fly by night and they should pay, big time. They had to know that doing something unprecedented like this required them to cover all their bases, and they did the opposite.

The photographer goofed but should look into filing suit against Yahoo since he seems to have chosen a license he didn't fully understand.

alanball says:

Adderley Family and djsam_spade:

Just to quickly note, that you have just given a company permission to use your image "anytime they like." and "put a sillier photo up of me !!!!" respectively.
That's fine. That was your choice, you gave permission.

Someone else may not, (or has not, which may be the case here), and that's where the law may have been breached. (In Australian at least). The topic of damages/suing/whatever you want to call it is irrelevant in the eyes of the law. And to make matters worse, the individual shown is a minor.

Again, more two cents...
Posted 29 months ago. ( permalink )

Tsu Dho Nimh says:

It is ultimately the company's responsibility to ensure that all photos have the correct licensing, and that the appropriate releases are obtained. Even if Virgin hired an ad agency, Virgin is still responsible if the photos were misused. If model releases were required and the agency did not get them, Virgin is responsible. I've bought photos for commercial use, and always insisted on getting a copy of the release for each photo.

The photographer might have been willing to have his pictures used for $0, but the model (especially a minor!) also has to give permission by signing a release. There are some instances where releases are not required, but commercial ads are not on the list.
Posted 29 months ago. ( permalink )

William Kwan    says:

In my opinion, the Ad is pretty creative. The friendly happy young girl is signalling V (for Virgin mobile) as if she's promoting the Virgin Mobile SMS text service as the message says, DUMP YOUR PEN FRIEND, means dont bother writing stuff with your pen anymore.. because the free SMS from Virgin to Virgin customers is here! I dont think it's racist, I think as we all know in Australia, Virgin marketings always has a very cheeky ads campaigns, thats what makes them stand out! The ad does not say get rid of your ASIAN PEN PALS like how others have mentioned it! I think all the fuss about this has made the ad work even better for Virgin?! The girl who wants no attention and "embarassment?" is now getting all of it because they start talking about it. Seriously, what difference does this have compared to embarassing celebrity photos being taken and then sold to magazines. The photographer have sold his rights to his photo, but the person in the photo dont have any rights whatsoever! If Creative Commons was chosen for this particular photo, then it definitely didnt breach any copyright laws because the attribution was done.
Posted 29 months ago. ( permalink )