richif 9:45pm, 16 July 2007
I work with the advertising team at Virgin Mobile in Australia and would just like to add a few things to the debate.

Using Flickr was a creative decision based on a desire to reject 'professional' photography in favour of more genuine and spontaneous shots. The premise of 'Are you with us or what?' as a campaign is to provoke thought, debate and include our audience in a conversation.

Using Flickr images was a conscious decision, and is a key part in this more democratic approach. It is very Virgin to embrace new and inclusive initiatives and Flickr seemed like a perfect match for Virgin Mobile. We have a pioneering spirit and the use of Flickr is an example of this.

This was never based on exploiting the Flickr community, quite the opposite - we felt it would be a great idea to use the creative commons licence to champion the world of Flickr.

Hence why we've always credited the Flickr user as outlined in the Creative Commons Attribution license conditions.

This is uncharted waters for all concerned and there are always learnings with anything this new.

With that in mind we did look into the creative commons licence to ensure that we were acting well within its terms.

If we've offended anyone we are sorry as that was not our intention.

We like to think that we are an open, down to earth company and wanted to make an honest contribution to the debate given our desire to keep working with the Flickr community. We welcome your thoughts to ensure that we can continue to champion this fantastic service.
Barney Wrightson 8 years ago
Hi richif, thanks for posting.

The debate is not about the use of creative commons licensed images. You were well within your rights to use them in this context, although I believe it would have been courteous to notify those artists whose works you chose to use. Certainly many of those authors (now that they are aware of it) appear pleased to have had their works used.

The issue is with those photos that have recognisable people in them. In order to use those photos, it is my understanding that you should have first obtained a "Model Release". Isn't this what you would here done if the photos were obtained in a more conventional manner?

Barney
benroberts PRO 8 years ago
oh come on rich. you guys just wanted to save money.... it's so blindingly obvious its funny...
sesh00 Posted 8 years ago. Edited by sesh00 (member) 8 years ago
bennybedlam - Yes, they got the images for free, but they were allowed to do that. The point of releasing something under the CC-BY licence is to allow anyone to use your image for whatever purpose. Virgin didn't use any images (to my knowledge) that were not allowed to be used commercially.

richif - I realise that it's probably not something you want to speak about publicly, but did your advertising company seek legal advice about obtaining model releases for people in the images? Under Australian law I believe obtaining a model release is a requirement that would fall onto the advertiser.

You mentioned that your team looked carefully at the licences being used, but it could also be argued that you failed to meet two of the criteria of the Creative Commons Attribution 2.0 licence:

For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page.


I fail to see anywhere on any of the advertisements that you recognise that the original image was released under the CC-BY-2.0 licence. It could have simply been done by placing the CC-BY logo onto the image, but that was neglected.

Attribution. 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)


Although I'm not sure if any of the images you used had specific ways to attribute the author, if they did you would have needed to do that. It could also be argued that linking to the author was not enough, and that you should have linked to the actual image being used. It is, after all, the image that is using the licence, not the author.

Anyway, your contribution to the discussion is much appreciated, and I hope that you can continue this dialogue with the community.

I hope that you have a great day (if you work in Australia - you're at work nice and early).

Cheers,
Brenton

// edit - fixed spelling, cleaned up a sentence or two
jbecker_99 PRO 8 years ago
richif - you state "Using Flickr was a creative decision based on a desire to reject 'professional' photography in favour of more genuine and spontaneous shots" and that is fine. But just because the images you used had CC licenses, and Virgin Mobile may have had the right to use the images for free, it doesn't mean Virgin Mobile was forced to use the images for free.

In my opinion, a large corporation using these images for free (regardless of whether you have the right to or not) is exploitation. Allowing a school kid to use a photo free for a school project is one thing, having a major corporation use it for a major ad campaign is another! And I don't particularly care whether the photographers are happy you used their images or not, that is not the issue. Exploitation is the issue. Doing the ethically correct thing is the issue. If these photos have value to Virgin Mobile, the photographers should be compensated, period.

In contrast to Virgin Mobile, look at Washington State Tourism (which undoubtedly has much smaller budget than Virgin Mobile). They have a Flickr group from which they select images for their website. Regardless of whether the images have CC licenses, they pay for licenses to use the images. Why? Because it is the ethically correct thing to do.

Unfortunately, Virgin Mobile isn't the only corporation to take advantage of photographers and the only reason it's an issue now is because they screwed up and used an image of a person without a model release (which was clearly illegal). For example, last year I was approached by an ad agency working for MasterCard who wanted to use one of my rights-reserved images for free. I said no; I'm struggling to pay for my camera equipment and a multi-national corporation wants to use my image for free! Where is the justice there? There isn't any, and there isn't any in what Virgin Mobile has done either.

The moral of the story is, don't allow yourself to be exploited. Don't use a CC license at all. If a corporation, or anyone else, wants to use your image, they can ask you first. And then you can agree to how much that image is worth to them.
gillicious PRO 8 years ago
Yeah, you can go ahead and say that you were wanting to champion the average Flickr user by using these photos, but the way it was done ended up just looking sinister. My photo was used, yet it was almost by accident that I ever found out about it, what with my being in Canada.

Why didn't someone email me, letting me know of my photo's usage? If I'd gotten an email about it, and a digital image of the poster that came from my photo, I probably would've been all "woo hoo!" about it, and blogged about how cool Virgin Mobile was. That's good PR. Instead, I'm a bit annoyed at what feels like stealing (the legal use of my image, fine, but without telling me), and I've been telling people about this while situation (through my blog and flickr). And I am one of the lucky ones, whose image doesn't contain a model; I'm not even mad, I'm just annoyed.

Whoever decided not to contact the photographers made a mistake.
teacherjamesdotcom Posted 8 years ago. Edited by teacherjamesdotcom (member) 8 years ago
Hi, my sister is in one of the photographs you used. Not only is she a minor, but you portrayed her with a derogotary statement.

You state:

"This is uncharted waters for all concerned and there are always learnings with anything this new."

But, in my opinion, there is nothing "uncharted" at all about using someone's image for commercial use. That has always been clear cut: 1. Notify them 2. Have them sign a release form 3. Compensate them.

There is only "uncharted waters" for compensation of something like this. But you choose to bypass compensation all together.

If you would have contacted my sister BEFORE you put up the image and said, "We're running this cool campaign, and we'd like to use this photograph." She MIGHT have said, "AWESOME! Virgin Mobile is a really popular brand and I'll tell all my friends."

If you would have contacted my sister BEFORE you put up the image and said, "We're runnning this cool campaign, and we'd like to use this photograph and we'll give you some Virgin T-Shirts or coupons", then her reaction MIGHT have been even better.

I think that most photographers and models that you're using might have reacted the same way.

But you didn't. You consciously decided NOT TO CONTACT anyone. I fail to believe that it was just an "oversight" that you decided not to contact anyone. And I don't think it was a matter of "convenience" that you decided not to contact anyone. I think you assumed that people would want compensation (which is their right) so you decided NOT to contact anyone.

Just like instead of posting your "statement" on the long message boards (www.flickr.com/groups/central/discuss/72157600541608353/) that has been discussing this topic, you start a new discussion thread. Is this so that you can say later you "attempted" to voice your statement? Why don't you take the time and try to contact the people on Flickr whose images you've taken? We're all here. Contact us and say "My name is _____, I represent _____ . If you have any greviences or concerns, please contact me at: _________".
jeremyfoo 8 years ago
Its sad that a commercial entity has kinda ruined the nature of CC that is for sharing of media.

I'm all for the CC-BY-2.0 license. Heck, all my photos are tagged that way because I believe that everyone should have access to free media to facilitate sharing in this world where corporations see sharing as a great sin.

Its quite discouraging to see how this is probably gonna ruin the experience for me.
littleoslo 8 years ago
fyi:

These people do not have any obligation to be your models free of charge; plus being phrased like “Dump Your Pen Friend” or other irritating ones. Besides copyright, there is also confidentiality. Here, we are talking about a Model Release. As a publisher of the advertisement, Virgin Mobile needs the consents of these people in the form of a Model Release.

thats what i blog about:
www.littleoslo.com/eng/home/?p=87

keep me post, damon
Sister72 8 years ago
Well, this certainly is eye opening. I've changed my CC type now because of Virgin Mobile. While I was agreeable to sharing photos, I am not agreeable to them being used without acknowledgment, without a link back to my flickr photos and for profit.
engraved cell 8 years ago
This is just wrong I don't care if that photographer is flattered or not there images or imaes are being used without permisssion. They need our concent just because they want to give themselves bonuses out of the ad budget they didn't spend. The photographers that say hey everything is cool need to releaze it's not. There was some kind of scum at some meeting looking to screw us over. Why don't I steal your house and claim it as mine and use it for a muti million dollar ad campain. Hey and not pay you any royalties for that house. You would be mad and sue me right? We in America may have heard of little debbie snake cakes. If you don't know the guy who invented them stole the picture it was his niece. Her parents sued and got payed for the use of her daughters image. Teacherjames, thats almost the same thing the photographer who took that picture never got a release for its commercial usage. In U.S thats the law and the picture was taken in the U.S and our laws apply. I say sue them and don't let this or and jackhole please not effect your feeling on photographers. Hey where not all like that photographer who took the image of your sister some of us treat photographs and people we photograph with respect.
engraved cell 8 years ago
To gillicious, where can we find out if someone is using our images like this can you maybe send me and email through flicker or post a link here.
engraved cell 8 years ago
here is a link to tat ad campain wowwwwwwwwwwwwww they used alot of people images from flicker.
engraved cell 8 years ago
engraved cell 8 years ago
As i read it all bullshit reject they didn't want to pay for it.
teacherjamesdotcom 8 years ago
Hi ENGRAVED_CELL,

Yeah, those are along the same lines as what we felt as well upon seeing this picture.

I'm trying to figure out the right way to pursue legal action. A lot of people on this board have already provided a lot of advice and opinions on it. But, I'm trying to figure out the best and right way of doing things.

BTW, this is gaining a little bit of momentum.

Jude Townsend from "The Australian" (a national paper in Australia) wrote an article about this situation in the paper today.

www.australianit.news.com.au/story/0,24897,22115934-15306...

She contacted me a few days ago and ask if we were interested talking about my sister's photo.

Also, a guy named Michael Atkin who has a radio show on Triple J Radio(?) interviewed me over the phone today. He says that the radio segment will play tonight during their 30 minute news segment. If you are in Australia, please check it out (he left his web address as: www.abc.net.au/triplej/hack)

Also, he said that he contacted Virgin Mobile to ask if they wanted to comment on the situation on the show and Virgin declined even though the demographic audience of the show is 15-30 young, hip,...basically Virgin Mobile's core demographic. Interesting...
engraved cell 8 years ago
Teacherjames, seriously contact CNN and MSNBC the chicago tribune I live in Chicago or the Chicago Sun Times seriously your sisters images is prominant in the images under U.S law where it was taken you need a release for comercial usage. Dude contact the wall street journal time magazine contact-contact everyone this is a story. Look up the little debbie thing like I said her parents got millions and probley are still getting money. Dude they are generating income from it right? If they are you deserve royalties. bring the agency into light bring the names of the people who are in control of the agencies into the spotlight. Shit I am going to call virgin here and say I am canceling my service and or at least calling the store and saying scum. Even though I don't have Virgin. Dude your attacking them in australia get them here thats what you are doing wrong. Get them in the U.S your not effecting them there here it will hurt. Get on it call CNN Monday afternoon or MSNBC. Shit get ahold of Keith Oberman on MSNBC or Chris Mathews on MSNBC shit Anderson Cooper on CNN. I just want to say that some of us who do photograph aren't as irasponsible as the one who photographed your sister. Please don't bunch us all with that dolt.
engraved cell 8 years ago
Dude, I know I am rambling but educate yourself sue Virgin here in the U.S sue the ad agencies U.S entities. Shit beat them down this is wrong shit I saw a pic of a guy who looks like there sleeping on the job what if he was doing that for fun for the pick. They had serial killer captions on some of those. The people who are in the pictures never signed on for that.
Ken Zirkel PRO 8 years ago
Better safe than sorry: You should have used istockphoto. Still trendy and genuine, but the Images there are all model released, and all the photographers and models understand the terms of the license.
richif... call it what you wil, you (Virgin) has played a game of dirty pool here, you know damn well you should have contacted the owner of the photos used, we're talking just as a courtesy at least, most folks just join here and post and have no clue as to liscense aggreements or any of that.. Im sure you guys freak when you hear of folks stealing YOUR property... so what gives YOU the right to steal? its just another case of big business trying to save $$$ by screwing the little guy.. nothing else..
110100111010110 [deleted] 8 years ago
richif, no offense but you come off as extremely disingenuous. There is nothing "democratic" about using people's photos without their consent or knowledge, and when they're minors no less. It is the opposite of democratic. I believe the word you were looking for was "non-consensual."

Whether or not the intentions of Virgin Mobile Australia weren't to exploit the Flickr community but rather to "champion" them is irrelevant, as exploiting them is the only thing that ended up occurring, and anyone on the advertising team responsible with any common sense should have realized this. Furthermore, crediting the Flickr user per the Creative Commons Attribution license condition was a legal requirement, nothing more.

If Virgin Mobile Australia is truly an "open, down to earth company," they will discontinue this practice immediately and replace the advertisements that were done without the consent of either the photographer or the subject. If they are also a fair company, they will provide reasonable financial compensation to those whose photos were used non-consensually and those subjects who had fair reason to feel insulted by the way their images were used. Considering that the family of the primary person in question here (but not the only person) tried for a month to resolve this matter privately with no success at all before pursuing this as a legal matter, is a strong indication that Virgin Mobile Australia is neither "open" or "down to earth."

richif, again no offense but your entire statement comes off as insulting to one's intelligence, a fact echoed by the universally negatively responses to it in this thread.

This article just showed up on CNN.com's front page, the #1 news website in the world. I wonder how Flickr feels about the negative publicity that's going to come out of this. I suspect their user base is about to plummet drastically.
Father McKenzie [deleted] Posted 8 years ago. Edited by Father McKenzie (member) 8 years ago
#1 What has amazed me is the amount of people that have created accounts to comment on this on various threads. You can tell by their knowledge of Flickr they are regulars, what are they scared of that they have to create fake accounts?

#2 "I wonder how Flickr feels about the negative publicity that's going to come out of this. I suspect their user base is about to plummet drastically. "

Not quite up on the free publicity bit are you? I would guess out of all this Flickr would be lucky to lose 50 people, (most have now realised they need to change their licences and have moved on). Every major news website has ran this story, most with a link to the girls photo and a link to the photo of the ad. The photo of the ad is now up to 120,000 views. Say 100,000 of these don't have flickr accounts and most hadn't heard of flickr. 65,000 of them think it is a cool site and sign up to post their photos. 35,000 of these become pro members. Nice little earner for Yahoo and they haven't had to do a thing.

If it had been bad publicity like you say the photos that the links directed to would have been removed after the first story but they are still there.
Same with Virgin, even if they pay this girl $20,000 what would they have had to pay to have their name on the front page of every news website and their back street of Melbourne ad has now been seen by hundreds of thousands of people.
austentayshus2001 8 years ago
....."quote" ....
This is uncharted waters for all concerned and there are always learnings with anything this new.

With that in mind we did look into the creative commons licence to ensure that we were acting well within its terms.
....."end quote"... from richif's opening post

richif your creative team are either lying or extremely poorly trained, every University and Tafe college in Australia is required to follow guidelines set out by the National Training Authority.

One of these guidelines is that every Certificate, Diploma, or, Degree of Multimedia contains a course module that deals with copyright law. Part of that module on Copyright must cover issues relating to Model releases and every student must understand the concept of Copyright law and how it relates to Model Releases. This course module must state quite clearly that a model release is required regardless of the type of copyright license used for that image.

This is a fact and I know this as I have almost completed a diploma in Multimedia (which covers the skills that are required to work for a creative team like Virgin Mobiles)

If you or any member of your creative team has a degree or diploma then it is impossible for Virgin to plead ignorance in this matter. The law is also quite clear in this area and every Creative industry professional is aware of the need for model releases except for some strange reason, Virgin Mobiles?

Whoever was responsible at Virgin Mobile for recommending and allowing using this image without permission of the model has cost Virgin potentially millions of dollars as there is no way that Virgin can win this, it is a straightforward open and shut case.

Either your team is quite ignorant, or more likely, your team was hoping to gain the use of a good quality image without paying for it and with the model being on the other side of the world thinking you could get away with it quite easily, if its the latter then it looks like you were wrong.
god, why does everyone think that because a photo is posted on the net, its fair game to just take it and ues it for what ever?

can you walk into a home and take photos off the wall? a museum? a store? we are all adults, and you'd think we would all know stealing is wrong.. youd think.
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