Flickr, Creative Commons and Virgin Mobile Australia

The New York Times has caught wind of a story that first broke in July on Flickr:

One moment, Alison Chang, a 15-year-old student from Dallas, is cheerfully goofing around at a local church-sponsored car wash, posing with a friend for a photo. Weeks later, that photo is posted online and catches the eye of an ad agency in Australia, and Alison appears on a billboard in Adelaide as part of a Virgin Mobile advertising campaign.

At the time, I read about it on Gillian’s blogone of her photos was used in the ad campaign. As the article points out, the issue isn’t so much about the Creative Commons licensing, but about securing model releases for humans featured in the ads.

Gillian points out that it would’ve been nice if somebody from Virgin had contacted her, just to say “hey, we’re using your photo on bus shelters”. I suspect that most photographers would be flattered to hear that.

Chang and the person who took her photo, Justin Ho-Wee Wong, have filed a lawsuit against Virgin. Rather stupidly, they’ve named Creative Commons in the legal action. They claim that “as the creator of this new license, they have an obligation to define it succinctly.” Er no, there are already laws governing commercial use–I think that’s outside of the ground that CC licensing covers. Lawrence Lessig says as much in the Times article.


  1. I don’t think that naming CC as a party was at all stupid. They wrote the license, and if its terms (including whether it grants the rights to use without a model release) are too vague, they should provide an explanation. My own view is that the CC license (Attribution 2.0?) covers editorial use but not advertising — but IANAL, and this may be interpreted differently in different jurisdictions.

    Not that I blame Lessig for trying to stay out of it — he’s rightly defending his organisation. (That, and his ideas have been much better at earning him fans on the web than convincing the courts.)

    This is one of those examples of where CC allows large corporations to exploit small-timers. Copyfight ain’t always about sticking it to The Man, and people should be aware just what allowing commercial use entails. (CC should also be a lot clearer about what using their licenses means for authors and artists; see how easy it is to learn that using a CC Canada license means waiving your moral right of integrity!)

    As an aside, there are doubtless CC people who would argue that a CC license should be interpreted to permit anything that would require a model release.

  2. I started writing a response, but it ballooned into a blog post all its own.

    I do have one question, though–do you think Flickr should have been named as well? If CC has obligations regarding informing their users, doesn’t Flickr? Or have they satisfied their obligations?

  3. If the CC license on the photo prohibited commercial use, then I think Virgin Mobile is entirely at fault, and they would owe the girl (the model) compensation.

    I think the default CC license now on Flickr is All Rights Reserved, and you explicitly have to go in and specify a new license (which generally involves you becoming educated about CC licensing). So I think Flickr has their side covered.

  4. Duane,
    AFAIK the picture didn’t prohibit commercial use — if it did, the agency couldn’t have used the picture, model or no.

    I think CC should do a better job of educating their users, but that’s not the core of my argument. People agree to all sorts of terms without reading the fine print or its implications. The problem is that the CC license itself could be interpreted in some areas as implicitly granting a model release, and CC should explain what it thinks its license permits.

    I’m with Duane about Flickr’s role in this. While they make it easy for users to release their work under a CC license, the users have to make that choice for themselves.

  5. I like Flickr.It`s very interesting and creative site.But my photos is not there(

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