Larry just posted about the Texas suit against Virgin and Creative Commons

Lessig
On the Texas suit against Virgin and Creative Commons

Slashdot has an entry about a lawsuit filed this week by parents of a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The photograph was taken by an adult. He posted it to Flickr under a CC-Attribution license. The parents of the minor are complaining that Virgin violated their daughter’s right to privacy (by using a photograph of her for commercial purposes without her or her parents permission). The photographer is also a plaintiff. He is complaining that Creative Commons failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.” (Count V of the complaint).

Please read the rest of his post.

This is a very good example of the complexities of copyright and other rights and the necessity of educating the public and ourselves about what copyright exactly is. As Larry points out, the posts on Slashdot are for the most part accurate and correct, but in a nutshell - Creative Commons is about copyright and NOT about privacy or other non-copyright issues. Just because something is licensed under a Creative Commons license, it DOESN’T mean that you can do anything you want with it. Different jurisdiction around the world have a variety of different laws, but depending on where you, property rights, moral rights, privacy laws and other laws may restrict what you can do with a photo. It is the responsibility of anyone reusing or remixing works to understand what rights may apply in their particular application. In particular, commercial use can trigger a variety of restrictions and a CC license on the photo by a photographer only relates to the rights that the photographer might typically have.

One of the things that I’ve been working on with our small group of photographers in the iCommons Photo-Commons node is to discuss things like model releases in combination with Creative Commons licenses to address exactly these sorts of issues. Above all, what is important is to create a way for subjects, photographers and people using these photos to have a clear way to decide and communicate what rights they would like to reserve and what rights they would like to permit. Creative Commons is one important part of this process, but we clearly need more than just CC to make this all work.

6 Comments

Dear Joi, Today, after following your blog daily for four years, I felt compelled to visit here in person to show my appreciation with a big warm thank you.

Today's posting here got me thinking about the photos of child soldiers, refugees, rape and torture victims etc, posted at my watch blogs on Africa - particularly 3 yr-old Sudan Watch blog containing nigh on 4,000 postings and hundreds of photos sourced from news, aid agencies, etc.

Also, after seeing the YouTube clip you posted recently, I wanted to thank you for all the laughs, useful info and beautiful photos. I need stronger specs, so couldn't see (through all my chuckling) what was on the front of his trunks, a piece of black fur or what! I couldn't resist trying out the left arm/left leg action and had a great laugh while doing so because it brought to mind bygone days of blogging fun, your great stealth disco clips and badger, badger, mushroom ... Heh x

This is annoying, they probably just want money. What solution do they see? Not allowing minors to use flickr? If you don't know what you're doing don't do it, it's not creative common's job to hand hold every person in the world. If the kid wanted to know more about what the license meant it was one click away. Ignorance is no excuse, actions have consequences.

This case is a reminder that the simplicity of the CC licenses is as desireable for the users as it is sometimes misleading. Maybe a warning could be issued during the process of choosing a license, just in order to open the user's mind to the fact that their decision about the author's copyright alone might not cover all the legal aspects of how his work may be used - and that the people displayed or described in their works might also have rights on their own accord.


What really strikes me though, is that a couple of e-mails or a phone call between Virgin, the photographer and the girl whose picture was taken might have avoided this conflict altogether. It would have been so easy to contact them through flickr's internal messaging system. After all it is just common decency to ask a person whose picture is about to be published – and to be seen by a great number of people on a daily basis – for that person's consent. Wether it is open content or not.


Here here to your statement, Joi, that CC is only about copyright, not other rights. Personally, I do not believe that CC should be trying to cover off anything but copyright - trying to cover all the legal rights that may need to be cleared for all uses of the work in all countries would be impossible.

On the same basis, I also don't think that photographers wishing to license their material under an open licence (including one that allows commercial use) can be expected to clear all rights for all possible uses of their work before they post them online. The CC licences are clear that they only grant certain rights, which are usually vested in the original photographer. As long as the photographers have cleared those rights for downstream users, that is all that can be asked of them.

While the CC licences are trying to make sharing copyright material in the digital age easier, there still has to be some responsibility on the part of the person using the material to make sure that their particular use complies with the licence, and that they have all the rights they need for that use - whether copyright, privacy, whatever.

This goes doubly so when the use is large scale and by a commercial organisation - who should be expected to know that large-scale and commercial uses potentially need clearance beyond the CC world of copyright.

@Judson - do you get model releases from all your friends before you take a photo of them and put it on the web? This case is not "just about money". Some of the people in the photos had quite derogatory slogans splashed across them and posted on billboards around the country. They are understandably upset that they have been made fools of. I don't think you actually read very much about this case before you posted your comment - I suggest you go here first:
http://www.flickr.com/groups/379879@N24/
If my image had been used without permission by the ad agency and it had implied I had bad breath or was some kind of anti-social dork I'd be inclined to sue the fuckers as well.

http://edition.cnn.com/video/#/video/us/2007/09/24/intv.virgin.flickr.lawsuit.cnn

it's the Virgin to Virgin copy which is the clincher for a girl with parents who are also quite religious it appears and therefore challenges her on a moral ground - one that challenges a teenager about still being a Virgin - I can understand that she is not happy as her parents - imagine if this was said about your daughter - ok its an ad but its not reflecting her reality as she was not a consenting model playing a role...

...however one questions that such publicity has now placed the spot light on this girl in a bigger more embarrassing global showcase!

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