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sesh00 12:26am, 29 June 2007
Hi Everyone,

I'm just looking to bring this to peoples attention, and perhaps get the people involved some advice on what to do next.

A little over a month ago I took a photo of a billboard I saw in Adelaide, Australia (which is part of a national advertising campaign). The reason I took the photo was because the image was credited to a Flickr user, and I thought I would take a photo so (s)he could see the photo in action. I was presuming all along that Virgin Mobile would have at least let the user know the photo was being used in this way.

It turns out that the user wasn't actually told about the photo being used in the campaign, although since the photo was released under the CC-BY-2.0 licence this really isn't the issue.

The issue is that Virgin Mobile (or the advertising company) failed to obtain model releases for the person who was actually in the photo. My understanding of Australian law is that a model release is required when a person's image is being used to advertise a product. This is definitely advertising a product.

The first reaction of the person in the photo was "i think i'm being insulted".

We've found quite a few similar billboards that contain images obtained from Flickr under the same licence, most users either didn't know the photo was being used, and we're pretty sure that no-one in any of the photos has signed a model release.

There is already quite a bit of discussion about the issue in the photo comments - which you can see here.

There are a couple of questions that arise from this. Firstly, does a photo being released under a licence that allows commercial use imply that models in the images have signed releases for the image to be used commercially? Is the way in which these advertisers are crediting the Flickr users acceptable (see the photo for an example)?

I'm hoping that someone in the know, or Flickr itself, will be able to pitch in and offer advice on where to go from here - it's getting a little of my head.


P.S. If anyone has advice on where to post this or who to post it to - PM me and I'll pass it on.
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(1 to 100 of 282 replies)
richard ling 8 years ago
Thankfully I was just looking at the legal situation for Australian photographers.

From www.4020.net/words/photorights.php:

"Australian Federal Trade Practice law is ruthlessly unambiguous: according to the Passing Off provisions in the Commonwealth Trade Practices Act 1974, (Part V — Division 1 — Unfair practices eg. Section 53), if you are silly enough to use a photo of someone without their permission (ie. without a signed Model Release), in an advertisement or other commercial context, then you are guaranteed to become a defendant in a statutory damages claim.

There is no way to wriggle out of this. Time and again Clueless Marketeers have discovered, to their distress, just how costly it can be to include shots of individuals in print advertisement, album covers or posters, without the subject's full authority and consent — see Henderson v Radio Corp [1960] S.R. (NSW) 576, Hogan v Koala Dundee Pty Ltd (1988) ATPR 40-902 and Talmax v Telstra Corp Ltd [1996] QSC 34.

Seems pretty unambiguous to me.
I strongly suggest reading the rest of the relevant section of this article which is too long to reproduce here.

iansand PRO 8 years ago
richard ling I haven't ever had a close look at this, but my instinct is that the damages would only be a reasonable amount if the subject had a reputation outside the photo itself, and there was an implication of endorsement. One of those cases is Kieran Perkins, and another is Paul Hogan. One of the earliest cases was a someone called Sue Becker, who has since sunk into obscurity.

I am not sure that the blanket statement on that site is completely correct. That does not mean that getting model releases is not a good idea.
Brenda Anderson PRO 8 years ago
Firstly, does a photo being released under a licence that allows commercial use imply that models in the images have signed releases for the image to be used commercially? Is the way in which these advertisers are crediting the Flickr users acceptable (see the photo for an example)?

In my *opinion*...

1. No, licensing a photo under CC-Attrib does not imply that you have a model release for anyone in the photo. It is entirely on the person who publishes the photo (in this case Virgin) to determine if a model release is necessary, and to secure one if so determined. The photographer has no obligation to obtain a model release. Dan Heller has a good Model Release Primer that addresses some of these issues.

2. I think that the CC license requires that you link back to the URL of the license and the original image, which essentially Virgin have done by posting the flickr url on the billboard. So, that seems fine to me.
sesh00 Posted 8 years ago. Edited by sesh00 (member) 8 years ago
OK - So from here I guess it goes in the direction of wondering what should be done about this?

I just found a blog post that details the specifics of the advertising campaign.

The Virgin Mobile ‘Are You With Us’ campaign was developed at Host, with creative work provided by The Glue Society (James Dive, James Harvey, Jonathan Kneebone). Virgin Mobile Australia marketing staff included Rich Field and Dave Cain.

Should I get the person in the photo (who I don't actually know personally) to contact the advertising agency? Or would it be best to bring it to their attention ourselves? Or.... Should I let the Flickr legal department know and see what they have to say?

I'm getting the feeling that it would be best to let Flickr handle the situation (if they are interested in doing that) - I'm just not sure who to contact about it!
iansand PRO Posted 8 years ago. Edited by iansand (member) 8 years ago
I think the first thing that "should be done about this" is contacting the photographers to find out their attitudes. Then they can decide what to do. A couple in the comments to the original photo seem quite chuffed. It is quite likely that they selected the particular licence with forethought and that they were aware of the implications. There may be no "situation" for flickr to handle.

And if there is a "situation", why should flickr "handle" anything?
photo208cam PRO 8 years ago
From the link of the image:


Some rights reserved

Under the following conditions:


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)....

plus 3 more conditions :

# For any reuse or distribution, you must make clear to others the licence terms of this work.
# Any of the above conditions can be waived if you get permission from the copyright holder.
# The author's moral rights are retained in this licence.

So to me, it seems that product endorsement can only be allowed with the consent of the photographer ( and hopefully with a model release).

It would be nice if the agency asked first. Maybe they did ?
sesh00 8 years ago
I can confirm that at least in this case the agency made no contact with the photographer or the subject of the photo.

If you look closely the removed what looks like that Adidas logo from the girls hat too.
iansand PRO 8 years ago
sesh00 I am suggesting that you make contact and find out if it is a problem. Then the photographer and the model can ask for help, but the answer is likely to be that the use complies with the conditions of the licence.
Stewart PRO 8 years ago
Now "Flickr" knows about this (I'm the general manager ;)

Interesting case. This seems to be a totally legit use of the CC-BY license, except that they *should* be making the license terms clear (i.e., by saying "Licensed by Creative Commons Attribution 2.0" or printing the URL of the license, etc.)

However, in the US, Canada, the EU (and presumably Australia and most of the rest of the world) use of a recognizable person in a commercial context (here "commercial" general means in advertising or promotions) definitely requires a model release. Of course, it is entirely up to the person in the photo whether they want to take action. If they don't care then it is merely bad practice on the ad agency's part.

If I was her, I might want to hit up Virgin's marketing people and ask them to arrange a few years of free service, at least ;)
♥ shhexy corin ♥ PRO 8 years ago
Great minds and all that.
markii187 [deleted] 8 years ago
I can't believe Virgin didn't contact any of the photographers.. I think it would just be a common courtesy to let the photographer (and the person in the image) know that they were going to be featured in an ad.

'Alison' in Chewywong's photograph appears in an ad which I think is definitely paying her out..
sesh00 8 years ago
Thanks for the responses everyone - I've "Flickr Mailed" the person who is actually in the photo and let her know about this thread, and some of the suggestion you have had. Hopefully I'll get a response sometime soon.

I'll let you all know how it goes.
John Grey PRO Posted 8 years ago. Edited by John Grey (member) 8 years ago
I was under the impression that one of the reasons for using a model release was to protect the photographer in this sort of situation. - As well as people in the photos possibly having a claim against the advertiser, they might also have a claim against the photographer for not protecting the rights to their image.
[edit to add]
My reason for using ARR is precisely this - to be (legally if not practically) in control of any uses - rather than having any wish to attempt to stop people 'stealing' my images.
The Guncle 8 years ago
It's a shame that we live in a society (and I mean a global one) where one has to defend their own rights by taking legal action simply because some huge corporation or commercial identity is seeking profit.

Kudos to Stewart for acknowledging this thread.

You know, I did a self portrait/photoshop thing in response to my really liking a new web browser by the people at Flock. I was approached and asked if they could use that image for some on-line marketing. I said, "sure" immediately. I didn't call my agent or lawyer or even think about monetary compensation - after all the web was built by people like me - most of us were thinking of sharing not banking. It irks me that established companies are now using the web and taking advantage of people.

I hope that each marketing director or PR person that "steals" from "us" winds up in the same hell as spammers and lying politicians.

(I happen to be a physically short individual and that is the only reason I've been standing on this soap box)
vapours 8 years ago
If it was my photo being used, I'd be onto the phone with a lawyer straight away.
iansand PRO 8 years ago
The licence permits the use.
♥ shhexy corin ♥ PRO 8 years ago
Maybe vapours would like to sue himself?
vapours 8 years ago
I'd be sure to win a sexual harassment case
♥ shhexy corin ♥ PRO 8 years ago
teacherjamesdotcom 8 years ago

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.


(PS: I'm putting this on both Flickr blogs that have discussions about this.)
e-person.ipernity.com [deleted] 8 years ago
All of that happened for the usual reason that some people like to expose in public failing to think in advance of the possible implications.

This time it was only an innocent ad. It could have been worse, like a scam, identity theft, and other nasty possibilities.

The AD gency is certainly wrong, the person that published people pictures for everyone to see, steal, and use at their will is not any better, though. Prevention is always the best solution. Stop exposing yourself to millions of people, unless you are a professional model. With photouching everyone can use a picture of yours and make you look like you are doing anything they like. If that is fine by you, then please go on, don't let me stop you.
iansand PRO 8 years ago
I was a licensed Australian attorney. I am doing other things and my licence has lapsed.

However, I counsel you to move very carefully here. Although a model release is highly desirable, I am not aware of any Australian law that prohibits use of a photo for commercial purposes without such a release. I emphasise "not aware" - I am not saying that such laws do not exist. It is significant that the sites I had a quick look at that say a release is necessary do not give any basis for that assertion.

There may be circumstances, such as implication of endorsement by a celebrity, that will entitle a subject to damages but I doubt that will apply here. Australia DOES NOT have punitive damages, or at least they are not regularly awarded, so do not expect anything more than compensation for loss actually suffered if you commence action. That may be an amount as small as a basic modelling fee.

You may find an Australian lawyer who will do this on a contingency basis, but again, in the absence of a likely entitlement to significant damages you may find that you will have to fund the litigation upfront, and if you lose you will have to pay the other side's costs.

But go for it - the lawyers have to live, after all.
Barney Wrightson Posted 8 years ago. Edited by Barney Wrightson (member) 8 years ago
The model release aspect not withstanding, it would appear that there is another issue with this campaign. At least one of the photos used seems to have been published under a non-commercial, attribute and share alike license; see this thread.

Unless the license has been changed since the advertising agency obtained the photo of course...
benroberts PRO 8 years ago
for me this is a prime example of why i chose to remove all creative commons licenses from my images.

i hate creative commons. it is killing the professional photography industry.
Myrwin Posted 8 years ago. Edited by Myrwin (member) 8 years ago
Flickr is a fine vehicle for photographers to display their work, and the site has a good reputation in the world of internet privacy and propritey, but this issue could set off a public relations horror show.

I suggest that flickr respond to this issue, immediately, in this way:

1. Set an upload default to All Rights Reserved.
2. Add a bounce to clearly written licence and copyright descriptions.
3. Require member acknowledgement of the information before the licence can be changed.
4. Issue a press release explaining the issue, their action and reasons for it, along with a warning to the general public about posting photos on other sites.

Psst! Any openings in the PR Dept.?
iansand PRO 8 years ago
Myrwin The default is ARR. After that, I think flickr assumes we are grownups and that we change the licence deliberately, and knowing the implications. In fact, the screen to change the licence gives a fair bit of information - have a look at it.

It is not flickr's problem and won't be unless Thomas Hawk needs to run a recruitment drive or some other person decides to create mischief.

I prefer being treated as a grownup. personally.
Myrwin 8 years ago
In other words, if a dumb member gets screwed, he had it coming?

When I started with flickr, I'm sure the default was not ARR because I changed permission on all my images after looking into things a bit and discovering all the Creative Commons stuff (which I had never heard of before).

I am a grownup, I am relatively experienced with the internet, I'm far from thick and my English is as good as it gets. I don't think the majority of members here are so advantaged.

This *is* flickr's problem.
Brock PRO Posted 8 years ago. Edited by Brock (admin) 8 years ago
When I started with flickr, I'm sure the default was not ARR

The default has always been ARR. Ever since the very first days...

In other words, if a dumb member gets screwed, he had it coming?

Er. Yeah. Legislation to protect the stupid is a ridiculous idea.

This is not Flickr's problem at all. If people want to use a license (which has not been created by Flickr) then people have the responsibility to understand that which they are applying to their images.

It is not Flickr's responsibility to force people to take responsibility for their actions. This is what treating people like grown ups is about. Assuming they understand what they are doing.

If that assumption is not correct, the person is at fault, not Flickr.
Myrwin 8 years ago
"Legislation to protect the stupid is a ridiculous idea."

I wasn't aware of there being any other kind.
Brock PRO 8 years ago
Really? Have you been outside?

Murder laws are to protect the stupid? The same reason why Rape is an offence, are you suggesting, is because women are too stupid not to get plundered by random men and need telling they don't have to let them?

What about theft? Because people are too stupid to lock their stuff up?

If you are going to make throw away comments, at least try and let it have some basis in reality...
♥ shhexy corin ♥ PRO 8 years ago
They should just do an IQ test on anyone wanting to use the internet
♥ shhexy corin ♥ PRO 8 years ago
We don't? Where's the fun in that?
Myrwin 8 years ago
You're right, Shhexy; we should do IQ tests before we let people use the internet, get married, have children, drive a car, vote in an election, leave their homes or even open their freakin' mouths most of the time.

I know that you were attempting to be funny but, really, think about it.
Myrwin 8 years ago
Brock, you said, "Legislation to protect the stupid is a ridiculous idea."

Are you suggesting that smart people (like yourself) deserve the protection of the justice system, but lesser peons don't?

Now what was that, again, about throw-away comments?
Brock PRO 8 years ago
Are you suggesting that smart people (like yourself) deserve the protection of the justice system, but lesser peons don't?

Er. No. Not at all. That is not a throwaway comment. That is called 'natural selection;. If people are too stupid to be able to live their own lives without the need of legislation, legal intervention, or overt external influence to allow them to survive, then I am not overly concerned about their dying of their own stupidity.

If you (as a human being, and speaking generally) are too stupid to understand (to keep it on context) the licenses that YOU decide to apply to your own photographs, then you deserve to lose the rights to any income that they may create.

Natural selection.

To deny it is to lower the standard (or average) IQ. Is that your aim?
♥ shhexy corin ♥ PRO 8 years ago
I know that you were attempting to be funny but, really, think about it.

Sorry, Myrwin, but my doctors have advised me against such dangerous activity.

iansand PRO 8 years ago
I actually like Myrwin's idea. I often find that, when I buy a train ticket, I need a little box to tick to confirm that I actually do want to travel to Redfern (because if I didn't work there I wouldn't go).

And I would like to tick a little box with a health warning to say that I really don't want fries with that. In fact I don't really want the that in the first place.

The possibilities are endless.
♥ shhexy corin ♥ PRO Posted 8 years ago. Edited by ♥ shhexy corin ♥ (admin) 8 years ago
I think his idea is very inefficient.

Surely only one IQ test would be needed? Then you could have your score branded on your forehead and be issued with a special code to provide when applying for, or buying, new things.

Of course, the Stupids would need a short number because anything longer than 4 digits might be hard to remember.
Darby Sawchuk 8 years ago
I'm pretty sure that due to the CC license, the photographer doesn't have a claim against Virgin. The model, on the other hand could probably do fairly well in court against them.

What's more is that the photographer shouldn't have to worry about any claims brought against Virgin by the model. It is the publisher's responsibility to determine whether or not a release is needed for a given usage, not the photographer's.

Read about responsibility for model releases here.
Mormegil 8 years ago
Don't know about Australia, but if this happened in America, someone would be getting sued.
♥ shhexy corin ♥ PRO 8 years ago
In America someone sues whenever another person pisses into a pot though
Myrwin 8 years ago
Yes, the American laws are bizaare. On one hand you're likely to get sued for, well, let's say calling someone an idiot. On the other hand, in some states you can legally carry a firearm, and probably suffer less consequences for shooting (the idiot) than telling him what you think of him.

Fortunately, I don't live in the USA. Unfortunately, Canada is getting just as bad for lawsuits and legislation of common sense.
Myrwin Posted 8 years ago. Edited by Myrwin (member) 8 years ago
Happy Canada Day, everyone... we're 140 years old.

Visit www.penderharbour.org
♥ shhexy corin ♥ PRO Posted 8 years ago. Edited by ♥ shhexy corin ♥ (admin) 8 years ago
you can legally carry a firearm, and probably suffer less consequences for shooting (the idiot) than telling him what you think of him

Ach, fuck 'em , they're only Americans...
purplezebra Posted 8 years ago. Edited by purplezebra (member) 8 years ago
root-2 - That's not an absolute, and if I remember correctly, I believe Heller even states that it's true in most, but not all, circumstances. Also, just because it's true doesn't keep you from getting sued.

I agree with iansand and Brock, and I also remember that since the beginning of time on Flickr, the initial default has always been ARR. I also sometimes get tired of hearing about how people are upset about their CC license because they didn't know what it really meant, but I don't think they're all idiots.

I think the majority of people understand the license, but they do not understand the implications of the license. Most people do not work in an industry that involves licensing in the smallest bit, so it's a completely foreign concept to them. Others are just out of school and not as worldly, and the "Choosing a License" page on the CC website makes it sound like the only sort of commercial use possible is someone selling your image. There's no mention of large corporations freely using your images for advertisements.

The complications of licensing is one of the reasons we started the Licensing Awareness Working Group.
Jayel Aheram PRO 8 years ago
Psh. I have been following that group and most people there have a very inaccurate and copyfascist view of copyright laws.
purplezebra 8 years ago
Your welcome to your opinion, even if it's wrong.
Pacdog PRO 8 years ago
I sure hope Were all on the same side here.. I mean were all photographers to some degree and it would be nice to see more of that Flickr Love I see on the logo... I for one anyways do not want to see any other Flickr member get hosed weather their own fault or not.. ie: Pacdog Loves you.. =o)
benrobertsabq PRO 8 years ago
So how do model releases work if the photographer is explicitly granting a right (of some kind, its all a bit dubious) by putting a CC Attribution 2.0 (as the original photo is right now) license on the original image?

Is the photographer then explicitly granting a right of use they actually don't have in the first place without a model waiver?

How can the photographer even grant a license in this case?

Does this just invalidate CC or should there be a "CC but only if you find the person and get a model waiver" License?

Is putting a CC License on an image equivalent to endorsing that you have permission from the subjects to grant the right of use of the photo to others?

Or is CC just a way to say "You can share my images as long as you don't, like, do stuff with them?"

I'm all for open licensing, but it seems like there are a few open-ended issues here. I'm kind of shocked that any Ad agency would be foolish enough to try and use a CC Licensed image given the number of businesses who have been burned already by CC.
sesh00 8 years ago
benrobertsabg - That is part of the question that I was originally asking at the start of all of this. My current understanding is that the photographer is well within his rights to release the photo under the CC license without having a model release. The photographer is releasing his artistic work under a license, and effectively saying that under the right provisions his work may be used for commercial purposes. It becomes the responsibility of the person/company/etc that wants to use the image to obtain model releases for the work.

This is just what I have found out from reading posts here, the opinions of others, and some information about how licensing images works here in Australia.

I think it's probably time to contact Creative Commons and find out what there opinion on all of this is. If it does turn out that the photographer needs a release to licence work under a CC licence, then that needs to be explicitly said by both Flickr and the CC people. Otherwise, anyone that releases an image under a CC licence would be liable if it was used in a commercial purpose.

@stewart/flickr staff - any chance you have someone in legal that would be willing to answer these questions with a little more certainty?
Myrwin 8 years ago
"Is the photographer then explicitly granting a right of use they actually don't have in the first place without a model waiver?"

That would appear to be the case with the Virgin Mobile situation.
benrobertsabq PRO 8 years ago
Thanks for the discussion sesh00 ironically I actually care about Australian law on this too, although not as much as US law for now.

It seems like Virgin would be on the edge as far as their legal ground goes, but then they seem to like the edge.

Here's the generic CC license for Attribution 3.0 (would apply to the US) creativecommons.org/licenses/by/3.0/legalcode

One of the things that I almost never see complied to with CC works used by others is the requirement from section 4a - "You must include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the Work You Distribute or Publicly Perform." That's for the license itself, NOT for the author attribution, which is separate.


This is all shockingly boring, and my examples are for the US, although I gave the link to the Australian version, and since I'm not a lawyer and we're talking multiple jurisdictions I can't even say much smart about it with any authority.

For the benefit of anyone else interested I posted some links below.

At some point it's "user beware" but I certainly think that the CC stuff is unclear right now, unless someone else has good info.

Trying to do research on CreativeCommons.org's site brings up the interesting point that while Australia HAS a jurisdiction-specific CC license, creativecommons.org/worldwide/au/.

The US currently doesn't appear to - it's a work in progress creativecommons.org/worldwide/us/ but differs only slightly from the generic CC license according to the CC site (see link).

So presumably at this point for the US we look to the generic CC license here: creativecommons.org/licenses/by/3.0/legalcode

It's the current 3.0 license whereas the photo in question used the 2.0 license, but for the sake of argument might as well use the current document I think. Have fun chewing on that! :)

I also think there's some confusion about CC licenses where people think that with regard to Flickr, having a CC license in some way gives them more protection than not, just based on people saying they are worried about having "no" license.

Since anything left with "No" license actually has "All Rights Reserved" which is far more limiting than CC. People who understand CC know they are deliberately making their work more accessible, and like it that way, but there seem to be enough posts by people with CC licenses who don't want their work used that maybe the point could be clearer.

I wonder if Flickr putting a bit better blurb on the license section of the site about All Rights Reserved vs. CC licenses might help?
teacherjamesdotcom 8 years ago
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!


Kristopher Logan [deleted] 8 years ago
yet another victim falls to photo theft or whatever you wanna call it. I hope it ends soon :(
Barney Wrightson Posted 8 years ago. Edited by Barney Wrightson (member) 8 years ago
Damon, if you wanted to get a hold of more people effected by this, Virgin would like to help you out by posting (I assume) all of the pics in the campaign at www.areyouwithusorwhat.com/ :) Just send a flickrmail to the users attributed on the photos...

I'd better attribute my source on the website - thanks wiredjazz :)

edit: even easier - the attributions are hyperlinked!
teacherjamesdotcom 8 years ago
Thanks Barney,

I will definitely do that! But I went to the site (www.areyouwithus...) and saw that most/all of those images weren't used in the billboard ads?

As in, the billboard ads that have been seen around Flickr are not on the website. And the Flickr photos on the website are not actually on billboards in the streets.

Is this about right?

timtak PRO Posted 8 years ago. Edited by timtak (member) 8 years ago
On second thoughts, perhaps I should not repeat the captions with links to the photos. The captions are Australian humour.
gillicious PRO 8 years ago
I found out a couple months ago that one of my photos was being used in the ad campaign:


Luckily I'm not in the same boat as others here, since there's no person in the photo being insulted. Phew. I am, however, annoyed (as some of you are) that I wasn't informed that my photo was being used, and only know because a stranger wrote down my flickr address from the poster and contacted me, and my friend Jocelyn (who's in Melbourne at the moment, and has a photo on a billboard too) confirmed that she'd seen the billboard with mine. Otherwise, I'm Canadian (as is my friend) and it's as likely that neither of us would've ever known about this.

How much trouble would it have been for a Virgin representative to create a user on flickr to comment on each photo being used, just to inform us that it was? Just to be polite! They're a huge company, they could afford to hire a lackey to do it.
Barney Wrightson 8 years ago

There seem to be a lot on that site, Whether they are all on billboards, I doubt, but they are still being used in the campaign.

Actually on second look, you are right - All those shots are landscape orientation & the billboards are all portrait & I can't see any of the billboard shots.

The best you can do would be to use the links on the photos of the billboards then, & ask the people who took them to tell you what it is if the upload is too small to read it.

gocarrt [deleted] 8 years ago
Here's another, evidentally, with a very identifiable person depicted:


Wonder if Virgin got a model release?
styler* PRO 8 years ago
in your case gillicious , your license doesn't require you to be informed.
Qole Pejorian 8 years ago
I just want to say that, as a photographer lucky enough to have had his photo used in a tabloid magazine and billboards around Australia, I'm excited and totally behind what VM did here. The whole point of the AO license is that you are knowingly allowing people to use your images in commercial ads. I've found my images all over the net; once my daughter was used as the cover model for a German governmental publication. The license requires the user to attribute the photographer, which is actually more restrictive than, for instance, a stock photo service, which usually requires only a one-time payment. Let me tell you, I'd much rather have my Flickr URL plastered around on the other side of the globe (I'm from Vancouver, Canada) than get $100 from a stock photo service.

Ironically, I find the AO license to be more of a deterrent to theft than marking the photo "All rights reserved." For some reason, people think it's "cheap" to attribute the photo. It's actually stealing attention away from your ad and focusing some of it on the photographer. Which is great for the photographer!
striatic PRO Posted 8 years ago. Edited by striatic (admin) 8 years ago
Let me tell you, I'd much rather have my Flickr URL plastered around on the other side of the globe (I'm from Vancouver, Canada) than get $100 from a stock photo service.

i think a lot of people would agree with this. i do.

it is also cool when you get paid for your work, though. i use a CC-BY-SA license, which means that people can re-purpose or transform my work, like in the case of the virgin ads, so long as they allow other people to re-purpose and transform whatever they end up publishing.

i think it'd be good of virgin mobile to publish all of their ads under a CC-BY-SA license. not just their flickr based ads, all of their ads. it'd be "edgy", interesting, would promote virgin mobile but would also let people reuse their design elements and commercial photography.

i'm perfectly fine with corporations playing with my work for free, so long as i'm allowed to play with theirs for free.
teacherjamesdotcom 8 years ago
Yeah, I agree that these licences have a much larger benefit for the photographer than stock photo houses. The attribution in the photos used by Virgin Mobile lets anyone interested to be able to contact the photographer.

But what about the subjects in the photos? They are not credited in any way on the billboard nor are they compensated. I don't think that's right. In the case of my sister, she IS the photo (it's not a landscape or a scene). She is completely featured in the photo. I think that someone should have told her and probably asked her (since the "headline" is making fun of her).
Myrwin 8 years ago
"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." TeacherJames

Ut oh. I smell a class-action lawsuit.
Hm. Wonder how much a flickr Pro account will be next year?
striatic PRO 8 years ago
'But what about the subjects in the photos? They are not credited in any way on the billboard nor are they compensated. I don't think that's right.'

it's the responsibility of the photographer to get that permission before posting the photo under such a license.

it is the photographer who is liable for giving that permission without the consent of the person in the photo.

if your sister IS the photo, and isn't comfortable with commercial use, you shouldn't have used a license that allows commercial use.
teacherjamesdotcom 8 years ago
Striatic -

I didn't take the picture. My sister's friend took the picture. It may have been his responsibility to get permission before posting the photo under such a license, but I don't he was expecting the picture to be used commercially.

Even so, I don't think the liability starts and ends with the photographer. Though anyone can use the picture under that license, everyone who uses it in a commerical setting should have the responsiblity of clearing model releases (or making sure they are in place).
Brenda Anderson PRO 8 years ago
striatic, as I understand it, it is the *publisher" who is responsible for verifying that a model release has been obtained before using the photo (if a model release is required). I don't think that by licensing a photo as CC implies in any way that you have a model release for the photo.
striatic PRO 8 years ago
then the creative commons license is completely useless for any photographs of human beings.

the purpose of creative commons is to facilitate the reuse of media.

what i see here is people trying to continue using CC licenses while simultaneously wanting the licenses to be entirely useless from a practical standpoint.

bottom line, the CC license states how the photo is allowed to be used. that can include commercial use without consultation as is the case with the licenses used here.

if people are uncomfortable with commercial use, or do not have full permission to release the photo for commercial use .. then they shouldn't be using a CC license that allows for commercial use.
♥ shhexy corin ♥ PRO Posted 8 years ago. Edited by ♥ shhexy corin ♥ (admin) 8 years ago
How about someone in a country that doesn't require model release? Should they not use a CC licence because it may be used by someone in a country that does require it?
♥ shhexy corin ♥ PRO 8 years ago
*grrrrs at American English continually confusing me about the correct spelling of licence*
Myrwin 8 years ago
American English is rarely correct. A license should be required to practise it.
Carlfish PRO 8 years ago
Late to the discussion here. I am not a lawyer.

The original (v1.0) Creative Commons licences included a "Representations, Warranties and Disclaimers" section that explicitly stated:

By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry: Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder...

In other words, a photographer releasing an image under a licence that permitted commercial use would be themselves responsible for ensuring that all the various releases had been obtained.

This section was removed from the 2.0 licence and replaced with a generic disclaimer, but all that means is it is legally unclear who is responsible for getting the release.

If you put up a photo and label it "free for commercial use" (as these CC licences do), someone who used the photo and got sued as a result could make a pretty strong argument that they were acting on good faith, and the photo was fraudulently labeled. This would put the legal burden back on the photographer.
ancawonka PRO 8 years ago
Wow. I had that same question about CC licenses, and decided to post my portrait work all rights reserved as a consequence.

I can't wait to see how this plays out.
ther-esa 8 years ago
In this case I might be inclined to agree with striatic's defence of the corporate everything. If they use cc licenced photos on bus ads - I'm assuming its share alike - doesn't this make it simpler for street photographers to go out and take street photos that include billboards and things...and still be able to sell those images or otherwise use them for some commercial purpose of their own? I was under the impression that you couldn't use street photos that included billboards because the company that made the ad owns the copyright/copymonopoly on the street scene.
striatic PRO 8 years ago
'I was under the impression that you couldn't use street photos that included billboards because the company that made the ad owns the copyright/copymonopoly on the street scene.'

if you take a picture of a billboard/scene for passing commentary on the billboard/scene that you'd likely be covered by fair use.

otherwise, the point of putting up a billboard or public ad is to get the word out, so suing someone for posting a photo of it is pretty impractical .. unless they're saying something negative about you, in which case they're protected by fair use.

see "barbie in a blender"

so taking photos with ads and logos in the street scene isn't a real problem. those logos are covered by trademark law, not copyright law, so there's a different set of regulations regarding their re-use that is related to avoiding customer confusion.
teacherjamesdotcom 8 years ago
I'm not sure if this is a "leading" question or a very pertinent example, but what about a situation in which a photographer snapped a street photo of Brad Pitt sipping a latte. Then, released that photo on their Flickr page under this license.

Then, a company takes that photo and puts it on billboards selling their brand of coffee beans without notifying either the original photographer or Brad Pitt.

And if/when Brad Pitt's people or the photographer notifies the company, then they say they "assumed" that the photographer had gotten the necessary releases, etc from Brad Pitt's representatives and then takes down the ad.

Is this a case where everyone would say, "simple misunderstanding" and go on their own merry ways?
ther-esa 8 years ago
I thought that fair use argument only applies to editorial uses. I thought that you couldn't take a picture on an empty street with a billboard ad in the scene and then use that photo to sell something, running shoes or whatever. If the billboard ad used cc licenced photos then it should be possible if it was share alike.
ther-esa 8 years ago
teacherjamesdotcom: no I think Brad's publicist would have another idea.
styler* PRO 8 years ago
Well brad pitt is a public figure so it changes
i mean i don't think gossip mags get permission from the celebs they cover

but who determines who a public figure is?
kori bustard 8 years ago
teacherjamesdotcom, have you had contact with Virgin yet? What did they say?
striatic PRO 8 years ago
'but who determines who a public figure is? '

there was an issue a while back with yahoo! using a photo of quarterback tom brady in an ad for a fantasy football league.

it may be less about how public the figure is, and more if the ad makes it seem like the person is endorsing the product.


the issue raised in brady's suit against yahoo is "false endorsement".

i don't know what the ultimate resolution of the suit was though.
teh resa PRO Posted 8 years ago. Edited by teh resa (member) 8 years ago
Ellipse: gossip mags are editorial, so they are covering "news". They make money on the sale of the newspaper but its not commercial use.

About the "public figure": some celebrities would have you believe that their face on an endorsement is worth more because when they are paid for these endorsements they are paid in the millions. Therefore, they reason that if their image is used without their permission that they have "lost" the millions they would have fetched for it if a deal had been negotiated. By the same reasoning, some say that the face of a private person is worth less and if their image is used without permission they haven't suffered as great a financial loss. Key word: financial.

I take the opposite point of view: Public people who have actively cultivated their celebrity have necessarily given up some of their rights to privacy in the bargain. They hire publicists, they go out to be seen, they do whatever they can to get their name out there and make themselves a brand. Who is to say what is the value of privacy to a private person who has gone to equal lengths to protect their privacy? Who is to say how much is the loss when that has been exploited against their wishes?

Don't get me wrong, I don't hate celebrities but I do think that if they are actively selling up themselves then their rights to privacy have been knowingly compromised. I think when you use the face of a private person to sell a commodity then that person suffers more loss and damage than the celebrity does. Suddenly strangers recognize their faces from the ads and associate them with it. If the ad is for something questionable then even their personal security might be at risk. At least celebrities can afford to hire 24 hour bodyguards/personal assistants.

This whole idea that something is worth whatever you can sell it for is completely misguided.
markcbrennan 8 years ago
Isn't the idea that something is worth whatever you can sell it for the definition of Capitalism?

At any rate, if the photo was given a CC license that isn't one of the "non-commercial" licenses, then I don't see the issue here. I kind of always thought that the purpose of using one of these CC-Attribution (or Share-alike, which is the one I use) licenses was to get your work out there for the world to see, not limit the exposure of your work.

I mean, how cool is it that people a whole hemisphere away from you are seeing a picture that you took, and then decided to share with the world? You should see if Virgin will provide you with a billboard sized copy of the ad!

With regards to the model release issue: is it really wise, as a photographer, to put a CC license that approves of commercial use onto a photo that has people in it? Especially if you haven't obtained a model release? As stated earlier, version 1.0 of the CC licenses seemed to imply that by putting the license on the photo, the photographer has already obtained the appropriate releases. Of course, Versions 2.0 and 3.0 fail to address the issue at all.
striatic PRO 8 years ago
'With regards to the model release issue: is it really wise, as a photographer, to put a CC license that approves of commercial use onto a photo that has people in it? Especially if you haven't obtained a model release?'

probably not, but i pretty much only take photos of people i know well enough that i know they wouldn't sue me.

so i guess that's the extent of the risk i'm taking.
teh resa PRO 8 years ago
Isn't the idea that something is worth whatever you can sell it for the definition of Capitalism?

The idea isn't misguided when your placing a value on some scarce resource like gold. Its misguided when you are putting a value on a person's privacy or other human rights relative to what they can be sold for.
gocarrt [deleted] 8 years ago
Market Value is not complete value.

The idea that something is worth whatever you can sell it for is a reasonable recognition of its Market Value.

Generally, personal privacy and human rights are valued on other merits.
iansand PRO 8 years ago
The theory of celebrity endorsement (and by stating the theory you should not assume that I agree with it) is that, if a celebrity can charge $Gazillion for an endorsement, free use devalues the "brand". If any schmuck can use any image for free how can you charge a gazillion for someone else to use it?

My personal opinion is that endorsement by a vast array of "celebrity" airheads who are famous for being famous is a good reason to avoid a product.
Pacdog PRO 8 years ago
I agree! That is why I never wear Jockey brand underware!
shimmertje PRO 8 years ago
As I understand it, a Creative Commons licence allows a company like Virgin Mobile to use your picture for anything they want, even if it's insulting, so long as they fulfil the conditions of the licence. That's just to attribute the photographer, ie by posting the Flickr URL, and Virgin have done that.

It's the responsibility of the Flickr member to be aware that one of the consequences of using a CC licence is that anyone can take their picture, without permission, and use it for possibly insulting purposes. This is terrible if that picture is of himself or herself, but even worse if the picture is of some other person (which is why my pictures are generally All Rights Reserved instead, and a whole lot of my friends refuse to have me take their pictures).

However, CC licensing is being used when it shouldn't be; for e.g., if you've got something recognisable in the picture, like trademarked logos, you are also supposed to seek permission and/or pay the owner of the trademarks, etc.

So it's not Flickr's responsibility, and Virgin is arguably innocent. HOWEVER; to cover all bases Virgin or more likely their creative agency should still have
a. Informed the photographer of the usage
b. Explained that the usage could possibly be considered defamatory
c. Checked that there was also a model release in place
d. Asked permission from any other owner of commercial logos etc - they clearly understood that when they erased the Adidas logo from teacherjamesdotcom's sister's clothes.

So anyone who would like to complain could contact Virgin; their creative agency; Flickr; Creative Commons; and the general media, because CC licences aren't well understood, and it's the poor subject of the photo who suffers - which makes a great human interest story.

I used to edit publications so it was 'fair use' to use anyone's picture anytime so long as it was for 'news', but even so the companies I worked for would pay small sums for stock photography as and when required. It's because of this that even though it feels great to have someone else use my picture for whatever it is, I kinda feel that they should pay for my effort if it's a commercial venture. It may not take long to snap a photo but I still spent my time and experience in getting to the location and arranging my settings and composing the shot, and in the commercial world everything is billed.

Some other posters in this thread, e.g. Qole Pejorian, have mentioned how pleased they were that third parties have been using their pictures for free, and they would prefer it to getting money. The thing is that others are then indirectly making money off your picture and you're not going to get any, and you're also fostering the attitude that nobody needs to pay for pictures when good photographers are giving away their work in return for an measly attribution.

Someone else also said that getting your URL up there in public is great, because others can come visit your page. Extra visits are nice; but there is usually little guarantee of any other compensation coming out of it precisely because of this attitude that picture usage should be free.

I've had people ask me permission to use my pictures for free. I take it on a case by case basis, and sometimes do say yes. But not always, even though I know the person is just going to search Flickr and just get someone else who'd be happy just to see his or her name in print. For free.
styler* PRO 8 years ago
by why should virgin cover all bases?
they found images with a specific license, they used them.
they did everything right

people just need to own their responsibility in licensing images, know what you are doing otherwise keep them all rights reserved.
DanielRobinson 8 years ago
I don't think anyone here knows for sure whose responsibility it is to ensure a model release is obtained when a photo of someone is used commercially. That's probably what teacherjamesdotcom's lawyer is looking into now. In any case, Virgin should have known that there is a difference between the use of someone's image in a photo and the creative rights to the photo itself.

What people were saying about using a photo of someone to make it appear like an endorsement is definitely illegal in Australia under the Trade Practices Act and has been successfully argued in a few cases. Beyond that I'm not sure.

I don't image this will be a class action case. There are not enough people involved.
ACME-Nollmeyer PRO 8 years ago
I'm a professional photographer...

REGARDLESS of the license posted, a photographer MAY NOT (or should not legally) license (what most people cal "sell') their photos for any commercial (read advertising) use without having a proper model release.

ON the flip side....

The photo could be sold (licensed) or used (with the photographers permission) for editorial (news) use without a model release. That is the law in the US anyway. I'm not sure how it applies over the sea however.

Maybe A Photo Attorney could comment on this?


Adam N.
Phoenix, AZ
ryanmcginnisphoto PRO 8 years ago
ellipse says:
by why should virgin cover all bases?
they found images with a specific license, they used them.
they did everything right

Wrong. But thanks for playing "I think I understand copyright law and privacy torts."
teacherjamesdotcom 8 years ago
Hey guys,

We sent Virgin Mobile a cease and desist letter last week to their legal department in New Jersey. We haven't received anything back from them.

I will keep you posted as we go. Any legal advice and/or inquiries are more than welcome as we are treading into unknown waters now.



FLC PRO Posted 8 years ago. Edited by FLC (member) 8 years ago
Surely sending a letter to the NJ office will be pointless as it's an Australian ad campaign and Cease and Desist orders is strictly American Law?

"Virgin Mobile is a brand used by several mobile phone service providers operating in the United Kingdom, Australia, Canada, South Africa, the United States and France. The international Virgin Mobile businesses each act as an independent entity, usually in a partnership between Sir Richard Branson's Virgin Group, which provides the brand, and an existing phone company, which provides the network infrastructure."

For instance, Virgin Mobile USA is a joint-venture between Virgin Group and Sprint Nextel whereas Virgin Mobile Australia is a joint-venture between Virgin Group and Optus and in no way related except via branding

Might as well send it to the Australian arm of the business, or the Virgin Group UK Headquarters... or if you've got the cajones, Richard Branson himself
iansand PRO 8 years ago
teacherjamesdotcom You need new attorneys. As far as I know the cease and desist system does not apply in Australia. One thing I do know - if an attorney engages in completely inappropriate steps (and yours has taken 2 at once) the other side's attorneys will take a lot of convincing to take anything they do seriously.
Dyslexic3 PRO 8 years ago
Perhaps I'm missing something here: what's the advantage to the photographer of having the CC license/licence at all? I find it hard to believe that attribution instead of compenstaion is the reason.
sesh00 8 years ago
One advantage is that you can get your artwork "out there", the exposure is something that a lot of people like.

Another (with the Non-Commercial licences) is that the photographer can allow use on things like open source projects, collaborations, etc., without needing to approve it. Again, it's an exposure thing.
DanielRobinson 8 years ago
ryanmcginnisphoto - Good comment, although in Australia there is no tort for invasion of privacy. This is if anything a Trade Practices issue.
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