Dump Your Pen Friend

aleeviation (72 months ago | reply)

hey that's me! no joke. i think i'm being insulted...can you tell me where this was taken.

chewywong (72 months ago | reply)

where was this? do you think virgin mobile will give me stuff?

sesh00 (72 months ago | reply)

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/

aleeviation (72 months ago | reply)

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?

sesh00 (72 months ago | reply)

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.

Barney Wrightson (72 months ago | reply)

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

Barney Wrightson (72 months ago | reply)

Some other examples...

and maybe

Barney Wrightson (72 months ago | reply)

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)

blakeemrys (72 months ago | reply)

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.

teacherjamesdotcom (72 months ago | reply)

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.)

sesh00 (72 months ago | reply)

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

Gaetan Lee (72 months ago | reply)

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/

teacherjamesdotcom (72 months ago | reply)

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.

Samuel Webster (72 months ago | reply)

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

chewywong (72 months ago | reply)

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."

Panza Verde (72 months ago | reply)

So, Virgin is in troubles...

sesh00 (72 months ago | reply)

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

teacherjamesdotcom (72 months ago | reply)

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

babasu (72 months ago | reply)

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

carwax (if you see Kay) [deleted] (72 months ago | reply)

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...

sesh00 (72 months ago | reply)

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.

sesh00 (71 months ago | reply)

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.

Gaetan Lee (71 months ago | reply)

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.

sesh00 (71 months ago | reply)

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.

Creative Antics (71 months ago | reply)

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

tuxcomputers (71 months ago | reply)

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.

outforawalk (71 months ago | reply)

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.

Chuck Goodenough (71 months ago | reply)

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

RTSilvado (71 months ago | reply)

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.

Ei Katsumata (71 months ago | reply)

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).

hotlipshoolihan (71 months ago | reply)

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.

littleoslo (71 months ago | reply)

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″.

autodetailer (71 months ago | reply)

Blog Me

yeahyeahcandy (71 months ago | reply)

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.

*****\\MOXXO//***** (71 months ago | reply)

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....

stockpixdotcom (71 months ago | reply)

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.

johnwarde (71 months ago | reply)

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.

sesh00 (71 months ago | reply)

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.

Paul Panayiotou (71 months ago | reply)

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

ohh_doh_oops_sorry (71 months ago | reply)

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.

jbimages (71 months ago | reply)

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.

jbimages (71 months ago | reply)

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.

sldx (71 months ago | reply)

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.

Kris_Syd (70 months ago | reply)

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..

Barney Wrightson (70 months ago | reply)

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.

Chuck Goodenough (70 months ago | reply)

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.

Chuck Goodenough (70 months ago | reply)

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

Jeff (xnine) (70 months ago | reply)

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.

cunparis (70 months ago | reply)

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.

Jeff (xnine) (70 months ago | reply)

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.

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