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You Picture, My Face - Where do the rights stand?

Teen sueing Virgin Mobile over Flickr posted image

     
5:36 pm on Sep 24, 2007 (gmt 0)

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You can read the story here:
[abc4.com...]

Anyway, the long and short of it is someone else (an adult) posted an image of this 16 year old girl on Flickr. Virgin Mobile (AU) used it in an ad campaign and claim that it was their right to since the pic was posted under Creative Commons.

Now, anytime I have had to deal with images of people on a professional level, I was always told you had to have a model's release form signed before you could use a person's face commercially. Is this wrong?

7:35 pm on Sept 24, 2007 (gmt 0)

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I was always told you had to have a model's release form signed before you could use a person's face commercially. Is this wrong?

I have been under the same impression for, well, all my life. This is especially true when the picture is a) used for commercial gain, and b) involving a minor.

Marshall

7:48 pm on Sept 24, 2007 (gmt 0)

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I was always told you had to have a model's release form signed before you could use a person's face commercially. Is this wrong?

I thought so as well... but I have never tried releasing a photo spread under a creative commons license before.

Also... was she a paid model? And if so what did she sign as part of her contract? If she isn't a paid model then is a signature required?

7:54 pm on Sept 24, 2007 (gmt 0)

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I was definetely under the impression that in print media you had to have the release. I worked for a college recruitment/marketing dept and we were threatened with a lawsuit over not having a release.

What I don't know is how the internet has changed that aspect of the law. Flikr and others might create a legal grey area.

8:13 pm on Sept 24, 2007 (gmt 0)

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The picture was taken at a church barbeque and posted by the church youth director to Flickr. She wasn't really a model. Just some kid who had her picture taken.
8:15 pm on Sept 24, 2007 (gmt 0)

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Photos of recognisable individuals should only really be used (at least commercially and/or for wide publication) with a signed model release form, if nothing else so that the person understands what might happen and so that you can show that you informed them.

The details and strengths of privacy/copyright/etc laws vary from place to place, but the courtesy and transparency of doing it right remain important.

Rgds

Damon

PS. In many places, eg the UK as I understand it, there are no particular protections for individuals in public places, but it would still be at the very least rude to pick a face from the crowd for (say) a poster on child molestation or fraud or whatever.

[edited by: DamonHD at 8:18 pm (utc) on Sep. 24, 2007]

8:51 pm on Sept 24, 2007 (gmt 0)

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The problem is the creative commons license which it was submitted under. Virgin didn't quote the source which the creative commons license actually demands as in (this image from flickr...) - so they're in major problems - since they didn't respect the license the picture was made public under. The girl has a right to get compensated on the basis of an estimate of their commercial gains from their use of the picture of her, not to mention compensation for any harm or psychological trauma (or whatever they call it) which it has exposed her too and so has the originating website - Legal battle ahead.

[edited by: RandomDot at 8:53 pm (utc) on Sep. 24, 2007]

9:27 pm on Sept 24, 2007 (gmt 0)

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The problem is the creative commons license which it was submitted under.

I can't imagine how a company as big as Virgin Mobile screwed-up so badly.

That isn't the only problem. There are three:

(1) They didn't follow the terms of the license

(2) They apparently didn't verify that it was even licensed under Creative Commons. They simply accepted the licensing information posted on Flickr. But anybody could have uploaded the picture and they could have gotten it from anywhere. The person uploading the picture may or may not have had rights to the picture in the first place.

(3) They didn't have a model release from the persons in the picture. This is quite separate from the copyright issue.

10:01 pm on Sept 24, 2007 (gmt 0)

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Well, apparently they did follow the terms of the Flickr creative commons. The URL of the page the image was posted on was on the ad.

The picture is a full shot of the girl facing the camera. There is no one else in the image as it was used, though the original image had one other girl in it.

To tell the truth, It is a pretty poor picture to be using in a professional campaign. The cropped out the other girl in the pic but left her elbow in it. I was thinking when I saw the ad that they should at least have cloned out the elbow.

11:09 pm on Sept 24, 2007 (gmt 0)

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That wasn't a very complete version of the story. They are also suing Creative Commons!

The picture was taken by her youth counsellor. It was uploaded by her cousin (not her and not the photographer) to Flickr using the creative commons attribution license. But they are not suing the party that is the most responsible for the issues here - her cousin - who had no right to post the picure under ANY permissive license.

Virgin Mobile Australia was foolish to base an ad campaign around a picture on flickr, but I can't imagine the family getting very far without naming the party that released the pictures without permission.

6:57 pm on Sept 25, 2007 (gmt 0)

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You know what the funny thing is? We all would love to be in her situation.....
12:19 pm on Oct 5, 2007 (gmt 0)

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No I don't find this funny at all!
12:48 pm on Oct 5, 2007 (gmt 0)

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Virgin Mobile Australia was foolish to base an ad campaign around a picture on flickr...

Looks like this is only one image in a whole series of ads using Flickr images. Do a search on Flickr for "virgin mobile australia". There are a number of people shocked to see images they've uploaded being used by a major company without paying them. Welcome to the wonderful world of web 2.0 ;)

8:41 pm on Oct 5, 2007 (gmt 0)

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If they uploaded the pictures themselves with a CC license that allowed commercial use, they should not be shocked. There are non-commercial CC licences.

In this case the people most at fault are 1) the one who uploaded someone elses picture and 2) Virgin for using it in such a high profile way without checking.

10:38 pm on Oct 5, 2007 (gmt 0)

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Absolutely right.

And if I was the teen pictured, I'd be outraged.

1:19 am on Oct 16, 2007 (gmt 0)

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The "owner of a face" has rights distinct from the "owner of a photograph".

Indefensible neglect.

File this under "Losing Face".

11:43 pm on Oct 22, 2007 (gmt 0)

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I think this would be a pretty clear case of misappropriation. The pictured individual was not part of a newsworthy event, there was no public interest served through the publication of her image, and she did not give consent for the publication of her photograph. The Creative Commons license can only possibly relate to the photographer's claims of copyright, not to the subject's claims of being involuntarily photographed (or voluntarily photographed and involuntarily published, since her reasonable expectation was that the picture would remain within her church/social circle and not be part of a national advertising campaign). The CC license might bar the photographer from claiming copyright infringement, but it couldn't bar the subject from claiming misappropriation, since she had no part in granting the CC license in the first place.

At least, that's my layman's interpretation of it.

1:08 pm on Oct 31, 2007 (gmt 0)

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Yes i think so. In some countries, photos are owned by those who take it, not the object being taken. Obviously Virgin mobile don't infringe copyright law, but i guess the girl can claim compensation through the tort law, if she can concisely prove what she loses from the publication. Let say, if she's psychologically impressed and see a doctor, Vigin mobile possibly needs to pay the counseling fee.
1:10 am on Nov 5, 2007 (gmt 0)

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if she can concisely prove what she loses from the publication.

That much is clear. She loses total control over when and where her face appears in the public domain. Her face no longer belongs to her.

3:45 pm on Dec 6, 2007 (gmt 0)

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The link in the first post is not working anymore. Produces page not found error.