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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.

Cheers,
Brenton

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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teacherjamesdotcom Posted 11 years ago. Edited by teacherjamesdotcom (member) 11 years ago
Hi FLC and Iansand,

Thanks for the advice.

We may need new legal counsel. Our current one has been "out of touch". I sent the New Jersey office a letter just to let them know we know the situation. It didn't come from an attorney's office or anything. I found their address from this page:

web.virginmobileusa.com/about/about_copyrightPolicy

I don't know what a true "cease and desist" letter actually looks like, but I did voice our complaints and left our contact information.

****

Anyway, I'm sure a lot of you know this but someone claiming to be from the ad agency put up a post on another forum board. You can read it here:

flickr.com/groups/379879@N24/discuss/72157600858275458/#c...
shimmertje 11 years ago
For the record, I haven't seen any Virgin Mobile bus ads in Brisbane for a while now. So it may be that Virgin isn't showing them any more.

And I just got Flickrmail from someone calling himself or herself photoinvestigaion, claiming to be a Sydney based journalist who is investigating this controversy. However the person's email address is photoinvestigation at hotmail.com, and nothing is stated in the email about name, publication, company, or what it's all about. Looks kinda fishy to me..
damph 11 years ago
I've looked into it a bit, and it looks like the only time you need to get a model clearance in Australia is if you're implying the person in the photo is endorsing the product or service (TPA s53). I'm not sure you could say that about the Virgin ads - they're using the person's image, but they're not suggesting the person is endorsing Virgin.

This is the difference between the Virgin ads and the Brad Pitt coffee example above - in that example the company is suggesting that Brad recommends their coffee.

As to whether it's the photographer's duty to get clearances before they license the photo - the CC licence very clearly states that it's only giving copyright permission, not any other kind of permission (defamation, privacy etc). There are so many different ways to use the photo that the photographer can't be expected to know whether downstream users might breach other laws. It's up to someone who's making a particular use of the material to work out if they need any extra permissions beyond the bare copyright permission the CC licence gives them
sesh00 Posted 11 years ago. Edited by sesh00 (member) 11 years ago
damph - I refer you to the first reply in this thread:


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.

richard


Emphasis added.

EDIT: And lets not forget that they failed to meet the basic requirements of the CC-BY-2.0 licence by not stipulating that the original image was released under that licence. They also added a possibly defamatory statement to the image, even moreso in this case - www.flickr.com/photos/jgarber/800060980/
iansand PRO Posted 11 years ago. Edited by iansand (member) 11 years ago
sesh00 That extract is wrong. damph is correct. The examples given in the reply you quote are all "celebrities" who succeeded because the use of their image implied endorsement.

The Hendersons, Paul Hogan and Ian Thorpe Kieren Perkins are all famous for various things.

For a more considered view of the situation in Australia, have a look here, particularly the top of the second columne on p 59 (the third page of the linked document). You are in danger if your use satisfies these criteria:

• The plaintiff’s (the subject's) goods/business have an established reputation;
• The defendant’s actions will cause purchasers to believe the Defendant’s goods/business is that of the plaintiff; and
• The plaintiff has suffered, or is likely to suffer, damage.

It is roughly what I have been saying all through this thread. They also refer to a case of Gary Honey, who lost a case although, as an athlete, he had some reputation.
thoughtful doctor [deleted] 11 years ago
As a professional photographer that got burned by Visa and the ad agency Chiat/Day in a similar incident involving a photo I had on Flickr that was originally CC'd, I have removed most of my photos from this site and reserved all my rights as the copyright holder. While it may not get me less attention from the AD's who peruse this site, I feel my work is much better protected.

When Creative Commons first debuted on the net for bloggers and software developers, it seemed like the cool thing to do to have a license for everything. But in reality, CC is a very bad business move even if you are an amateur photographer with no commercial aspirations, as this Virgin incident proves. I would urge everyone on this site to remove their Creative Commons licenses and go back to a full rights reserved copy protection.
M-u-z 11 years ago
I noticed this relevant article in today's Australian newspaper...

www.australianit.news.com.au/story/0,24897,22115934-15306...
teacherjamesdotcom 11 years ago
Hey guys,

Yeah, Jude Townsend from "The Australian" wrote an article about this situation in the paper today.

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.
iansand PRO 11 years ago
Well that was a non-story. "Moral rights"? Pretty much means "not a leg to stand on".
engraved cell 11 years ago
This is just wrong that is your property that belongs to you. Those stole it and can maybe sell and what if that photo says aids patients or has std in the caption. What if they use it for another client like that huh. The ad agency does have other clients. You took the image you deserve the 100 dollars and your name on the photograph for taking it. Its not the other way around you have creative rights.
Walwyn PRO 11 years ago
Virgin Mobile said yesterday the images from Flickr captured the "very spirit of the campaign".

LOl. I wonder if they'll have cause to regret that.
Louise. 11 years ago
With all respect, nothing will come of this.
No one got hurt, no damage.
Case closed.
This is Australia!
(sad but true)
Walwyn PRO 11 years ago
This is Australia!

Yeah, and those affected ought to be able to claim a "Fair go at the sauce bottle" vis-a-vis Virgin Mobile. So I'd recommend making it personal wrt to those involved with the campaign. So of tit-for-tat.
Scarlet Pimp 11 years ago
I've had similar, if less public, experiences. My advise? Don't seek remedy. Simply send Virgin an invoice for use of your image. They have used it and so they must pay. I'm not sure what the going rate for a photographer of a billboard campaign would be but you want to demand at least $5000 australian . Send it recorded delivery to their head office and enclose a letter stating they have 14 days to make payment. Be polite and indicate that you think using the photo without your permission was undoubtedly no more than an oversight on their behalf.
Walwyn PRO Posted 11 years ago. Edited by Walwyn (member) 11 years ago
Except they the photo was under a Creative Commons which allowed commercial use. The issue isn't about payment but whether VM should have used the photo in the way that ridicules the subjects. Of course they are legally allowed to do so, but shouldn't they have held back on such a usage?

VM says that their usage reflects the "very spirit of the campaign" IOW that the spirit of the VM campaign is to associate VM with the ridiculing random identifiable people. That I think is the message that needs to be highlighted.
DanielRobinson 11 years ago
Ha, wow, I actually told my brother to mention the Virgin issue to Triple J who he was contacting about a similar issue with the use of his image. I just showed him the show and it's definitely the same guy he was talking to. Obviously they decided to run with it.

Triple J is, by the way, a nationwide station run by the ABC. It is undoubtedly listened to more than any other station in Australia.

Here's the broadcast: Flickr, Virgin Mobile and You?
styler* PRO 11 years ago
yeah i mean seriously people there was a license, they used it
why are they the bad party?

to me the issue is people not understanding licenses when they apply them
Walwyn PRO 11 years ago
@ellipse

You're right the licenses allowed for commercial use and that they were used commercially is tough. Live and learn.

The only thoughts I have with VM is how they've treated the subjects of those photos. At the very least they are mocking.

IMO VM have taken photos which they considered cool and used them in an uncool way. They may be legally entitled to do so, but being legal isn't the only issue here, they could well have used staff photographers to go out a photograph random people in the street. The use to which the images are put; what they consider acceptable behavior, reflects on VM as a company.
yinyang PRO 11 years ago
@Walwyn

whether or not you think VM have used the images in a cool or uncool way, the fact that it is generating a considerable amount of interest here and in other media just tells the ad agency and VM that the campaign has succeeded, and that also reflects on them as a company (not that I disagree with a bit of acknowledgment from VM to the photogs wouldn't have gone amiss)

question is which ad agency is going to use flickr images next for another campaign.
Walwyn PRO 11 years ago
My take on this is that you label and brand them as social scumbags, unfit for polite society. You ought to be able to stick the proverbial knife into their underbelly and twist it with vigour. Complaints to the advertising standards agency along the lines of the ads being insulting and encouraging school yard bullying would be a start.
engraved cell 11 years ago
Ya they may have not been smart enough with the licence usgae but this is still wrong. The people in the photographs didn't sign any releases and that CC can and should only be able to work with someone that is not prominate in the photograph. They are going on stereo types about Chience people here in te U.S that they are dumb. I b et you that Ad team is driving around in brand new cars kaughing at us all. Where do you think that ad budegt went. They do have other clients right. So what if they put a caption on it saying she ha Aids or maybe VD or any other STD. IS that right? So your daughter grand daughter niece or coisin being put all other myspace as a slut or something else is that right. Again if someone is prominat in the photograph and being used for comercial pruposes you need a release. Hey Louise, you hold a camera and say no one got hurt it makes me laugh. Photographers will get hurt people's trust in us will get hurt street photographers will get hurt. In other words they stole out car took it around sold stuff out of the back seat and wil probley resell it and steal the whole thing.
Walwyn PRO 11 years ago
Where do you think that ad budegt went.

VM ad: Cheap content, cheap idea, cheap product, cheap service. Cheap, cheap, cheap.
styler* PRO 11 years ago
@engraved cell
but if things like that bother you don't allow a commercial license. then nobody can do that to you
sesh00 Posted 11 years ago. Edited by sesh00 (member) 11 years ago
@iansand - Thank you very much for the link. I realise that the examples all highlight (somewhat) famous people, but I still feel that the use of the image without a model release could fall under that section of the Trade Practices act - do you have any specific examples of where such a claim has failed in court? Would the fact that the person in the photo is a minor affect the claim?

From discussions with people working in advertising, it's pretty much unheard of to use an image in a campaign without a release. A friend of mine has said that when designing catalogues and brochures, the designers on the team will often refuse to use an image with seeing a release first - simply because any work they do with it cannot be used without one.

@Terence Patrick, ellipse - I'm with both of you that Virgin Mobile was well within their rights to use the images, there is absolutely no doubt that the original images were released under a licence that allows them to be used commercially. It could however be argued that they failed to meet the requirements of the licence. They failed to note that the original image that was used was released under the CC-BY-2.0 licence, which is a requirement. It could also be argued that they failed to correctly attribute the image to the author - which required the name of the author a a link to the original work. Sure they used the authors Flickr alias, but when the actual name of the photographer is easily available, is that really good enough.

I'm with you in that Flickr and Creative Commons needs to make it more obvious to photographers what licensing an image under a specific licence means. And it should be noted that the Creative Commons licence makes no claims about a model release being present for anyone in the photo.

The photo that had been used should have never been released under the CC-BY licence. Part of my original question that still remains somewhat open, is whether or not the photographer (i.e. you or I) is liable if an image is used like this?
iansand PRO 11 years ago
engraved cell
So what if they put a caption on it saying she ha Aids or maybe VD or any other STD. IS that right?
In Australia that would be defamation. A whole different pot of cash.
Brenda Anderson PRO 11 years ago
ian, and isn't it defamation then to use a photo of someone with a caption that says "people who talk in lifts have bad breath", as VM did?

Maybe it's a "lower" level of defamation, but if the person in the photo feels insulted, then that should count for something.
sesh00 11 years ago
www.abc.net.au/triplej/hack/notes/s1986057.htm

National radio show in Australia had a discussion about this last night. They have a CC "expert" on talking about about the licensing issues.

Also takes a quick look at the Model Release thing as well, although only very briefly.
iansand PRO 11 years ago
sesh00 If you read the whole article you will see a reference to a case in which Gary Honey (one time wannabe celebrity athlete) failed.

That the person is a minor should make no difference. Bindi Irwin would win. My daughter would lose. Ms Irwin has a profile. My daughter does not (yet, according to her). It is critical that the use appears to be an endorsement.

Most responsible lawyers (and most of them are) would advise against starting an action, particularly as, in Australia, you will be ordered to pay the other side's costs if you lose. Potential big bikkies.

Getting a model release is prudent. In most cases it is not necessary unless the person has a reputation in the community.

Usual disclaimer: Anyone who acts on this post without getting situation specific advice has rocks in their head.
iansand PRO 11 years ago
Brenda Anderson It is defamation if it affects their reputation in the place of publication. It may be so. It may not.

I wonder if they have used any images of Australians in Australia? Most Joe Blow Americans, for example, would not be able to establish that they have a reputation in Australia. An Australian will be able to.
sesh00 11 years ago
The same disclaimer obviously applies to anything I say as well - neither of us are lawyers (at least to my knowledge).

OK, we don't want to take this to court for obvious reasons, like the fact that you're saying that they will lose, and also the fact that none of the plaintiffs are Australian residents or have easy access to the Australian legal system.

There's not much we can change through the use of the court system.

I'm still concerned about the misuse of the licence (both by the photographer and by Virgin Mobile) - as a community we should be asking Flickr and Creative Commons to clarify the use of the licences for photos. That's something that we can actually achieve.
iansand PRO 11 years ago
The only misuse of the licence is an argument (and I think it is a dodgy argument) that attribution is to the home page, not the photopage.
styler* PRO 11 years ago
really why is this flickr and creative commons issue
they give you the information on what each license means
and
flickr gives you a default of all rights reserved when you sign up.
engraved cell 11 years ago
Sesh00, yes we should be angry and not just flick it all aside. I have the right reserved function which is good on me but what about those who have no understanding of it. Hey and what will they do next time to the photographs on flicker. What if they manipulated the your photograph ellipse to make you or someone you photographed look like they where kissing or making out with someone else. They can do that with Photoshop and other programs. They should clarify yes the use of it as your uploaing any photograph. What if this happened to a relative or someone you know personally then would you take it seriously.

but if things like that bother you don't allow a commercial license. then nobody can do that to you

so forget anyone and everyone else they are on there own huh?

but under that lisence they can put that caption on Aids or anything else its under that lisence right. Doesn't that concern you? I went on tat where are they now and there are captions that say serial killer and lazy. I am very concerned for fellow image makers that just don't know any better. I personally do for school but what about others huh. So are we to throw this aside and forget about them and care more for ourselves.
Walwyn PRO 11 years ago
The images were CC-BY thus they can be used, and there is very little that one can do legally about it. Live and Learn wrt CC licenses. The copyright issue is a no win you cannot get any redress that way.

If you want to get even with them then you do it through other means. You attack the company's use of the images in the way that they have. For example:

Whatever humour there is is based on making fun of the slightly geeky, its not big and its not clever. Its provincial and the modern world moved on long ago. Perhaps they think that Australia is a backwater still living in the 1980s?

Also by laughing at the slightly geeky they are saying that its OK to make fun of those that aren't like you. A tacit support for bullying. The ad in effect appeals to the herd instinct. It says "be like everyone else" the use of Virgin Mobile is for those with no individuality.

Ridicule the message that the ad is trying to put over. Argue that the Ad demonstrates that VM is a backward looking, uncool product.
sesh00 Posted 11 years ago. Edited by sesh00 (member) 11 years ago
iansand, what about not stating that the original image was made available under the CC-BY licence? That is a requirement of the licence.

I'm not trying to say that it's Flickr or CC's fault, just that it would be good if they could further explain the use of these licences to people who may not understand their impact.

And engraved cell, I'm extremely concerned, disappointed and angered by what's happened here, although there is nothing that we can do within the Australian legal system. Flickr defaults to the use of All Rights Reserved, so that's a good thing - you need to change the licence of an image to make it available for commercial use, but it should be explained better what changing the licence means. If they manipulate a photo of me and used it in a campaign, I would be speaking to a lawyer about the situation and getting proper legal advice about the case. If it happened in the US, then is there anything I could do from over here? Probably not. That sort of manipulation would be covered under different laws here in Australia anyway.

Your example of using the Aids caption is a different kettle of fish, that would be classed as defamation here in Australia, and you WOULD be able to challenge them about it in court.
styler* PRO 11 years ago
i will admit the language of the licenses is kind of hard to get a grip on. It's not in super easy terms, but the wording choice (i suspect) is the way it is to keep it legal enough to protect people.

but i would have thought the difference between commercial and non commercial was reasonably simple. And if you don't understand something don't use it, and stick with the default which totally protects you.
iansand PRO 11 years ago
sesh00 I regard that as a relatively minor breach. In Australia, the amount awarded is an amount that would put you in the position in which you would have been but for the breach. The question is "How much have you lost through the breach of the licence?" Two tenths of bugger all is my uneducated assessment.
sesh00 11 years ago
I agree with both of you (ellipse, iansand) - the wording of the licences isn't beyond comprehension, and it would be a minor breach of the licence if taken to court here in Australia.

Would it really be that hard though for Flickr to put a simple "Using this licence (or license) means this image can be used commercially without first consulting you. Please ensure that anyone depicted in this image is not offended by this before selecting this licence." or a "You are allowed to use this image commercially, although this licence does not indicate that a model release has been signed for it's usage. Please check with the photographer if this image depicts a person." - An extra step of confirmation on both side would be great, and would have meant that this issue would never have come about. Although, common sense on both sides would have also meant this issue would have never come about.
styler* PRO 11 years ago
for example
what are my - as the photographer - 'moral rights'
styler* PRO 11 years ago
yeah but that's one aspect sesh00

and often where you go into detail about something, unless you have the right legal language, you can get sued for mis representation. Becuase flickr is based in america the land of lawsuits

but maybe more links to the creatve common's site could be useful, like this page
creativecommons.org/about/licenses/meet-the-licenses
styler* PRO 11 years ago
also i see there are new versions of the CC licenses
i wonder if flickr will upgrade?
sesh00 11 years ago
ellipse, they could easily add that page to the licence page here on flickr - or even just add the relevant content to the flickr licencing page (with the correct attribute ofcouse :P).

I'm concerned about the "moral rights" thing as well, with a question being whether or not you can morally release an image for commercial use when there are people depicted in it? And really, I don't think as a photographer you should do that, especially without the permission of the person.
iansand PRO 11 years ago
sesh00 The default is all rights reserved. To change that requires a deliberate act. It is reasonable to suppose that an adult, in full control of its faculties, has committed that deliberate act in full appreciation of the consequences. Nannying must have its limits.
styler* PRO 11 years ago
sesh00, well thing is i think that page may relate to the newer licenses, we all carry older versions.
engraved cell 11 years ago
Its just some of us not all have to go after getting our images out correct from our camera. To get something unquie should bring everyone to a passionate embrasse of them. I just think this ad agency and VM avoided paying a photographer because they found a way around to get something for nothing. They cropped images removed people from pictures took out unquiness of that person's vision. We as people who do know should tell others that selecting these lisnces for come with consequences. Iansand, its not nannying its concern that these eople may not know better. These people may lack the experience and we as peole who have either been burned or learned from others should share this information.
Walwyn PRO Posted 11 years ago. Edited by Walwyn (member) 11 years ago
I just think this ad agency and VM avoided paying a photographer because they found a way around to get something for nothing.

They didn't find a way around it. The photographer explicitly said "take this, modify it, and use it anyway you want for free." Basically the photographer got caught up in the stupid FSF philosophy, but whereas you have to look under the rug to see the exploitation of your GPL licensed software, its not so hard when it comes to having a photograph plastered over a billboard.
engraved cell 11 years ago
Its not just a photograph plastered over any bill board. Its a photograph that I should of been told about but luckly its not mine. Its about a photographer over stepping there rights and not putting that photograph under that lisence. The ad agency and VM just found a way to screw the little man. Its a lesson for me that I took all my photographs down from here. I will just use this thing to put up stuff maybe temporarly and then remove it. This is just exploitation of the little guys and girls and we fell for it. Oh what a joy it is too see your image used on a bill board or magazine. Its not when you probley aren't even contacted by the comapny but fellow users. The company should of contact the people who owned the photographs not the flicker users.
iansand PRO 11 years ago
engraved cell The photographer, not the subject, owns the photos.
sesh00 11 years ago
Looks like we might have some proper legal advice on this issue now - taken from the site linked to in the original reply to this thread (www.4020.net/words/photorights.php - down the very bottom).

Commercial Use case study: Virgin Mobile "Are you with us"

In June 2007 Virgin Mobile Australia launched a controversial billboard and internet campaign to tout their SMS-TEXT services. What made it noteworthy was that they illustrated their ads with "creative commons" pictures appropriated from Flickr, without the photographers' knowledge or permission. Furthermore, many of the images also featured clearly identifiable depictions of people, again without their knowledge or consent (eg. Alison Chang: original vs. advertisement).

Despite claims the images were used legitimately via Flickr's "creative commons" license, the fact is Virgin never obtained the consent of people shown in the ads: the license only applied to the photographer's copyright, not to the subject's consent to use their likeness. Thus (1) the images were used "commercially" to sell products and services and (2) photo-subject consent was never obtained. Consequently the ads appear to be in clear breach of the TPA. Considering the magnitude of the campaign, prompt action could then be expected by the ACCC to fine and injunct the things out of existence.

Or so it would seem, except for one major problem — these particular images were not taken in Australia and neither photographers nor subjects were Australian citizens. Which unfortunately places them beyond the jurisdictional scope of the TPA or any other Australian law. If the photographs were taken here, then the subject would have a case. If they were taken overseas of an Australian citizen, again people would have a legitimate complaint. But foreign person + foreign photographer + foreign location?…

Nyet.

Clearly the Virgin Mobile people did their homework. You apparently can use unauthorised images of people to sell products, just make sure they're foreigners photographed overseas! Well done guys, very slick.
iansand PRO 11 years ago
Actuallysesh00 , if you will allow me to blow my own trumpet, you have had "proper legal advice" for quite some time.
sesh00 11 years ago
Thanks for the contribution to the thread iansand, it's being an interesting learning experience for me.
Wooble 11 years ago
The CC licenses from 2.0 on are, IMO, completely worthless. The 1.0 license contained a provision stating that the Licensor warrants that he actually has the right to offer the licensed work under the license and that you can actually legally use it for whatever purposes the license says you can. The newer versions of the license specifically say that there is no such warranty, which means that to actually use CC works you really need to investigate for yourself whether it's legal to use them, which in almost every case is going to end up being more expensive than just paying someone for a license that includes a warranty.

That said, Virgin should really think about hiring some competent lawyers who would have read the licenses before they used the photos and realized that being licensed under CC-2.0 doesn't mean that anyone is claiming you can actually use the works commercially or even that the supposed photographer actually owns the copyright at all.
engraved cell 11 years ago
The subject still owns there likeness if you never got a release and you plan to use the image for comercial usage. If the iumage is used in some sort of ediotorial way then the photographj owns the image. From my understanding the photographers that took the images of the people and released it under that lisence never had the right too. They never got a release to do so the photograph may be in their possion but the person in the image still has rights. Even the pictures from the zoo or cemetary still have rights they never got a property release to use them comercially. The reolatives of the person on the grave stone can sue the photographer can sue for releasing the image under that lisence.
engraved cell 11 years ago
opps posesion
engraved cell 11 years ago
If some of us remember Opra tried the same thing and lost but this was in the U.S though. She used images that photographers took for her book witrhout their permission or concent.
sesh00 11 years ago
engraved_cell, Releasing something under the CC-BY-2.0 licence does not imply that a model release has been signed. The photographer is releasing his/her creative work under the licence, and that's all.
iansand PRO 11 years ago
wooble I think Virgin Mobile had very good lawyers. Those lawyers will have looked at this quite carefully. VM will not pay a red cent to anyone under legal compulsion for the use of these photos. What they do as a matter of goodwill is their business.
Wooble 11 years ago
I somehow doubt a good lawyer would advise someone before the fact to break the law. I concede that their lawyers are probably good enough that they'll make it way more expensive than it's worth for any of the people they've wronged to get anything out of them, but that's different from reading the license in the first place and saying "oh, we don't need model releases because these are CC".
engraved cell 11 years ago
Sech00, I am saying that the photographer never should of released it under that lisence. They never got a model release to do so.
iansand PRO 11 years ago
wooble My point is that they have not done anything wrong under Australian law, and their lawyers will have ensured that what they did was entirely legal before it was done.

In spite of what innumerable sites say, there is no legal requirement for a model release unless there is some suggestion that the person whose image is used appears to be endorsing a product, and that person has sufficient notoriety that the endorsement is worth something in the marketplace. That is not to say that obtaining a release is not prudent, but it is not necessary.

The only law to which those sites refer is the Trade Practices Act. That Act has a section 52, which prohibits misleading and deceptive conduct. It is not misleading and deceptive conduct to publish a photo, unless there is a suggestion of endorsement as set out above. I know this stuff. In another life it was my livelihood.

If the people decide to sue it will be very expensive because they will lose, and will have to pay their own costs and Virgin Mobile's costs.
engraved cell 11 years ago
There are cases the photographers who sued Ohpra and won when she stole there work and used it to for here book to advertise it and such. There are several cases in the United States I don't know what its like over seas but here you need a release when its used for commercial usage. I just think it was irasponsible of those photographs to release something that they had no rights too. I do agree that there lawyers have found a way to get around it and thats why they are doing this overseas and not here. I went back and looked at my photographs before I pulled them all off here they have rights reserved. After seeing that rights reserved is a default those people made a consious desision to change it to that other lisence. Its just disapointing that girl and other have to suffer with wrong desion of the person who photographered her.
M-u-z 11 years ago
Apologies if this has already been posted.

Podcast on *Triple J regarding this issue...

www.abc.net.au/triplej/hack/notes/mp3s/hack_flikr.mp3

*(For overseas readers.. this is a popular Australian youth radio station)
purplezebra 11 years ago
In spite of what innumerable sites say, there is no legal requirement for a model release unless there is some suggestion that the person whose image is used appears to be endorsing a product, and that person has sufficient notoriety that the endorsement is worth something in the marketplace.

Could the suit be for defamation? That seems to be the real sticking point for the recognizable people in the photos, especially the people in the "People in Lifts Have Bad Breath" ad.
iansand PRO 11 years ago
purplezebra I dealt with defamation here.
purplezebra 11 years ago
Thanks!
Walwyn PRO 11 years ago
Don't argue the law unless there is a blatant infringement. Mostly these companies have it sewn up or have deep enough pockets to out spend you.

Reflect the ad campaign back against the company.
benroberts PRO 11 years ago
iansand PRO 11 years ago
bennybedlam Typical blog. All about hysteria, nothing about information. Oh well.
helpful receipt [deleted] 11 years ago
Hysteria implies out-of-control...probably not quite that bad, yet...
unbiased trend [deleted] 11 years ago
I hope they are using mine.. would be cool to be in a virgin mobile ad..

Rice field art --
sesh00 11 years ago
Why is that image appropriate to the advertising campaign? Or are you just spamming the thread?
engraved cell 11 years ago
Sesh00, just sounds like that person is spamming the thread. Hey but this insident has taught me a lesson get off my ass and send a cd to the library of Congress to properly copywright my images. When i put up my own personal sight design it were someone has to work at even trying to steal my work.
engraved cell 11 years ago
Hey also the people don't need to be famous or not whether you are joe everybody or not you still have rights.
Eric Hamilton 11 years ago
"i hate creative commons. it is killing the professional photography industry."

That's ludicrous. People just need to be aware of what they are doing when they release something under a creative commons license. All of my photos are available under a creative commons license -- but they are NOT available for commercial use without my permission. That makes it easy for individuals to say, post pictures I take from parties on their MySpace profiles, but if a corporation wants to do the same, they need to pay me a use fee -- as it should be, IMO.

The free individual use for MySpace has helped me build a reputation in my community and get my photography business off the ground, and the creative commons license gives us a nice legal agreement upon which that sharing is grounded.

- Eric
merfam 11 years ago
This is how I feel about Virgin Mobile using my photo

I can say that my photography has been used in a national ad campaign (magazine and billboard) by a Major Corporation. How many armature photographers can say that? I’m going to add this experience to my resume and consider it a feather in my cap.

The photo they used is of my daughter who is fine with the ad, and as her legal guardian I have no problem with it either.

I feel it was innovative of Virgin Mobile to use a Web 2.0 site like Flickr for their ad campaign. This is a company that understands the power of technology.

Peace,
Jason Meredith
(MerFam)
Steve Rhodes PRO 11 years ago
Sorry I didn't see this earlier.

On April 19th, I got flickr mail from Sterlo (who has never posted photos)

www.flickr.com/people/42334047@N00/

asking permission to use one of my photos which is under CC, but only for non-commercial use:


Subject:

Photo permission


Hey Steve,

My name is Jim and I was wondering if I could use one of your images for an advertising campaign in Australia. The image in question is the legs standing on the soap box. Obviously we will print a name credit on the ad and it will be distributed far and wide here in oz. It is for a mobile phone company and it is talking about free speech. Hopefully world fame will await you as a result. Please let me know asap as we will be making the decision about which image to use in the next 24hours.

Thanks Steve,

Jim



I wrote back asking for more info:


Subject:

Re: Photo permission


Hey Steve,

The campaign is for Virgin Mobile Australia and the ad is advertising their new deal with text messaging. The concept is about now you can have more freedom of speech. It will be in two magazines as a full page spread underneath a headline.

I'd be pleased to offer you $200 AUD for your shot.

Once again, timelines are tight so if you could grant us permission to use your shot asap we will also pay you immediately. If you could detail how you would like to paid we will do that straight away.

And also, like previously stated, you will be credited by name at the base of the ad.

yours,

Jim.


I actually was a bit concerned about the person in the photo even though it was just his feet, but it seemed like too tight a timeframe to ask him, so I said yes.


Subject:

Re: Photo permission


Thanks mate,

will organise payment now and will send copy when printed (would you rather a proof or a copy of the magazine?)

jim


Then on May 2nd, I got this message:


Re: Photo permission


Hey Steve,

Bad news I'm afraid. The client went for a different shot instead of yours (the one I was recommending). Sorry, I really liked your photo and was sad to see it go from the campaign. Thanks once again for your trouble and I hope next time I can use one of your shots with a bit more luck.

all the best

James.


I forgot about it til I saw this topic.
Qole Pejorian 11 years ago
A (perhaps final) addendum:

Now, when I go to the "large size" page of my CC photos, Flickr has new text across the top:

Download the Large size - Any user can download this photo because you've applied a Creative Commons license to it. Change license?

Very interesting. Obviously people at Flickr have taken this whole thing to heart and decided to make sure that we, the photographers, understand a bit better the consequences of our license.
teh resa PRO 11 years ago
well they can download it anyway but I appreciate the extra reminder. It should say "download button is visable because you've applied a cc licence....hide the button?"
teacherjamesdotcom 11 years ago
Hi, I just wanted to update people on the situation with my sister's photograph.

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

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

damon@teacherjames.com

Any legal queries can be forwarded to:

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


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

Damon
jimbowen0306 PRO 11 years ago
I don't mean to step into a row that isn't mine, but is the "Drop your Pen Friends" tag line only being used in Australia? I half remember seeing it elsewhere and have never been to Australia.
tuxcomputers 11 years ago
Not all comercial use is product endorsement. To take a previous posters comment and example of a photo of Brad Pitt sipping a coffee.

I can enlarge it, frame it and sell it:
1. Commercial = yes
2. Endorsement = no
3. Model realse = no
4. Legal = yes

I could use it to advertise my brand of coffee:
1. Commercial = yes
2. Endorsement = yes
3. Model realse = no
4. Legal = no

Same photo, both are commercial uses it's the endorsement part that is different.
Brenda Anderson PRO 11 years ago
I see that a lawsuit has now been filed against Virgin (Australia) and Creative Commons about this issue:

www.guardian.co.uk/worldlatest/story/0,,-6937728,00.html
Jim Skea 11 years ago
I don't see how Creative Commons can be judged liable for simply defining a copyright license that people may or may not choose to use.
Eric Hunt. PRO 11 years ago
Saw the same thing in the San Francisco Chronicle:

www.sfgate.com/cgi-bin/article.cgi?file=/n/a/2007/09/20/n...

And I wondered the same thing - why is Creative Commons being sued? The article did not adequately explain.
matt Posted 11 years ago. Edited by matt (member) 11 years ago
I wondered the same thing - why is Creative Commons being sued? The article did not adequately explain.

Lawyers often like to throw crap at everyone involved and just hope some of it sticks, or, often, hope that someone would prefer to quietly settle than have crap thrown at them in public.

I mean, I sure they have some explanation, probably relating to inadequate explanation of the license, or possibly relying on some quirk of Australian commercial law compared to the US-centric language in the license, which may even be legitimate, but I think it's a safe bet that it's at least partly just crap-throwing.
matt 11 years ago
Oh yes, speaking of Australian commercial law, there's clearly a problem with using someone's likeness to promote goods or services without their consent. It's an aspect of the law entirely separate from copyright, and not addressed by CC licensing at all.

Not sure if that'll help anyone, though, since they filed the suit in the US. I wouldn't be that surprised to see the whole thing booted due to a lack of jurisdiction.
richard ling 11 years ago
The Sydney Morning Herald (Australia's main broadsheet) also has an article on this lawsuit today. It also mentions Creative Commons as a defendant, which is crazy IMO. I thought it must have been a mistake by a reporter in the other paper but now I'm not sure.

www.smh.com.au/news/technology/virgin-sued-for-using-teen...

It will be interesting to see what happens. I don't think CC will be found liable, they don't have any assets anyway to my knowledge
Findo PRO Posted 11 years ago. Edited by Findo (member) 11 years ago

"The Sydney Morning Herald (Australia's main broadsheet)"
You mean Sydney's main / only broadsheet...? 'The Australian' is the only real national broadsheet... ;)

The interesting thing to watch will be whether the judge deems that the photographer ought to have sought a model release before granting a commercial use CC...
Brenda Anderson PRO 11 years ago
How do they determine jurisdiction? The photo was taken in the US but published in Australia. Whose laws apply?
matt 11 years ago
The interesting thing to watch will be whether the judge deems that the photographer ought to have sought a model release before granting a commercial use CC...

It's actually the publisher's responsibility to ensure that they're allowed to publish the image, this includes ensuring it's been adequately released and waived and what-have-you. The UK, for example, doesn't require a release unless the person's image is considered valuable in itself — a public figure or celebrity — though the usual rules about defamation apply.

Without a contract between the publisher and photographer requiring them to provide a release (and that doesn't exist in the CC license), or indemnify the publisher from legal action (likewise doesn't exist), there's absolutely no obligation for the photographer to obtain a release at all.
alcotodd 11 years ago
only just catching up with this one. 2 things strike me as interesting, 1. if there is a legal case pending the amount of comments from people including the parties involved. I would be wanting to this whole thing deleted if it was me.
2. the amount of people making comment with obvious lack of legal education or qualification is scary.
jakerome PRO 11 years ago
I totally agree with #2. Exhibit A is right above me.
iansand PRO Posted 11 years ago. Edited by iansand (member) 11 years ago
Does anyone else find it puzzling that that it is derogatory to suggest that a 16 year girl old is a virgin? Particularly for "church friends"
The ad also says "Free text virgin to virgin" at the bottom.

The experience damaged Alison's reputation and exposed her to ridicule from her peers and scrutiny from people who can now Google her, the family charged in the lawsuit.

"It's the tag line; it's derogatory," said Damon Chang, 27. "A lot of her church friends saw it."
I'm glad that Australian law remains sensible enough that suits like this will not be started here.

I am also interested to know whether she could have been googled but for the well meaning intervention of her brother and the assembled throng of pitchfork wielding peasantry.

In my former life I was occasionally asked if it was worth suing for defamation. My advice always contained two warnings. The first was that the matter complained of may get more publicity because of the lawsuit. The second was that, for evermore, the allegation could be repeated under the guise of a protected fair report of the lawsuit.
matt 11 years ago
Does anyone else find it puzzling that that it is derogatory to suggest that a 16 year girl old is a virgin? Particularly for "church friends"

I thought it was the 'ditch your pen friend' bit, myself, not that that's any more defamatory.

And those church youth groups. Dens of iniquity. At least where I grew up.
Vato Bob 11 years ago
Personally, I'd be ecstatic about one of my photos being used for an ad campaign for a company (regardless of the size). The only reason why I would be bothered about not being notified is that I would never get to brag about it. Although that obviously isn't the case here.

The legal action your taking is, in my opinion, similar to the "hot McDonalds coffee" incident. Obviously the cases are different, but they are similar in the idea that both are requesting compensation where compensation isn't needed.

And if anything, the compensation is coming in the form of publicity (if not from the ad directly, then certainly from this discussion thread). I’m sure your profile views have sky rocketed, and for most of us, that’s a great thing.

I found this thread interesting and kept on reading it. I was on your side until the very moment you said that you demanded compensation. Because just like the couple who "burnt" themselves with McDonalds coffee, your now trying to get money out of this situation. And THAT is was gets to me.

But then again, it’s just my opinion.

How much are you expecting in compensation, $100, $1000, $25000? (The amount that one your mentioned attorney was able to attain from a similar case.
jakerome PRO 11 years ago
Can someone refresh my memory as the facts of the hot McDonald's coffee case? Such as, was the woman injured? What were her medical expenses? What did McDonald's pay? Did they change the temperature they serve their coffee at? Was the woman driving at the time?
jakerome PRO 11 years ago
www.lectlaw.com/files/cur78.htm

How many people avoided getting 3rd-degree burns because of that lawsuit?
yinyang PRO Posted 11 years ago. Edited by yinyang (member) 11 years ago
and so begins mis-information from the media

....According to the lawsuit, the picture, taken by the girl's youth counsellor, was pinched from the photographer's Flickr page without permission

taken from The Courier Mail
Vato Bob 11 years ago
ok, so the mcdonalds coffee incident was a horrible connection. After reading the article jake, i realise that the individual was intitlled to compensation.
teacherjamesdotcom 11 years ago
Hi, we've obviously been keeping up with the news and with these boards. I'm not going to post often because I shouldn't. But I do want to put up some responses to a few of the previous posts.

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

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

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

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

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

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

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

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

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



I disagree. My mom disagrees.

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