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Flickr Photo Used Without Permission

Chang v. Virgin Mobile USA

     

engine

11:52 am on Oct 5, 2007 (gmt 0)

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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.

Four months later, she and her family are in Federal District Court in Dallas suing for damages.

Flickr Photo Used Without Permission [nytimes.com]

Moral: Think about what photos you upload, and what permissions you grant.

ogletree

12:08 pm on Oct 5, 2007 (gmt 0)

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This is only happening because it is Virgin. They have very deep pockets. People with deep pockets get sued way more than people that don't. They would have never thought to do that if it were some guy working at home or even a small company.

callivert

12:21 pm on Oct 5, 2007 (gmt 0)

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This is only happening because it is Virgin. They have very deep pockets.

You're kidding right?
Man, if that was my fifteen year old daughter, I'd be mad as hell and doing the exact same thing.

zett

12:26 pm on Oct 5, 2007 (gmt 0)

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Excellent find.

Another key learning from this is: when using a photo, DO NOT TRUST THE LICENCE ATTACHED. Especially when the photo carries a "Creative Commons" licence and is hosted on Flickr.

You do not know whether the uploader actually has the rights he claims. The genuine copyright holder may not even be aware of the CC licence or the existence of the image on Flickr. If things turn out bad, the genuine copyright holder will look for damages and turn to the infringer first, not to Flickr, and not to the uploader.

The infringer will probably point to Flickr and/or the uploader (as seems to be the case here), but as the infringer did gain commercial benefit, the lawsuit is best thrown at them.

The thing that strikes me, though, is - why did Virgin use a CC licenced image in the first place? Can't the afford to licence images any longer?

vincevincevince

12:27 pm on Oct 5, 2007 (gmt 0)

Edge

12:33 pm on Oct 5, 2007 (gmt 0)

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They would have never thought to do that if it were some guy working at home or even a small company.

Maybe not sue and get international exposure.. People still get upset when their content or picture is used without permission.

If John or Jane Nobody gets caught going this then the complainant always asks "What can I do". Here in the south USA there is a phrase "You can't get blood from a Turnip". Which means you can't sue for lots of money when they don't have it. When your fundamental rights are violated, you too will ask “what is fair compensation and what can I likely get”?

The Virgin Corporation has the money to expose the picture to many people and they also have the money to investigate copyright issues and ask permission.

[edited by: Edge at 12:34 pm (utc) on Oct. 5, 2007]

jcoronella

1:07 pm on Oct 5, 2007 (gmt 0)

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>> only happening because it is Virgin

I disagree. Perhaps it got press because it's virgin, but like callivert, if I had a daughter and her picture was plastered on a billboard with a derogatory statement I would spend a bucketload to sue on principle - especially if an ad agency was involved, because they of all people should know better than to trust some creative commons user selected license.

WiseWebDude

1:19 pm on Oct 5, 2007 (gmt 0)

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I would be mad as hell as well. Why couldn't Virgin offer to pay for the photo and that would be that. They deserve to be sued for that one. Companies making billions of dollars selling cell phones and they think it is ok to take another person's photo for free? No, wrong. Virgin should be ashamed of themselves and that's putting it nicely.

Miamacs

1:33 pm on Oct 5, 2007 (gmt 0)

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This news is a month old.

...

Apparently it's not Virgin but its Australian branch, and when you dig deeper, it's not them, but the ad agency that they trusted their campaign with.

Virgin doesn't have to check the model release for every photo in every campaign, that's why they hire the company that creates the ads for them.

...

This is a mess, but it's pretty common. Sadly.
The download a pic from the net kind of practice.

The lawyer for the family said it's not really about the money.
It's about the copy, the context that freaked them out the most, and I'd agree that it's a bigger issue than using a photo with a shady licence.

It said 'dump your penfriend' and another said 'virgin to virgin' with the girl and no one else on the photo, and a girl who never agreed to give her face for ads with such slogans!?

While lawyers may argue that this isn't abusive, people from planet Earth probably won't.

[edited by: Miamacs at 1:34 pm (utc) on Oct. 5, 2007]

ogletree

1:34 pm on Oct 5, 2007 (gmt 0)

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I promise you this is more about money than being upset over what happened.

SEOMike

1:37 pm on Oct 5, 2007 (gmt 0)

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An interesting sociological perspective that I wouldn't have thought of:

What people don’t seem to get here is, they are obviously using stereotype by randomly choosing any Asian girl, and think she is some Japanese schoolgirl that would have a pen pal in Australia.

from: [racialicious.com...]

I have no affiliation with that site.

WiseWebDude

2:08 pm on Oct 5, 2007 (gmt 0)

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Virgin doesn't have to check the model release for every photo in every campaign, that's why they hire the company that creates the ads for them.

Agreed.

I promise you this is more about money than being upset over what happened.

Agreed. It SHOULD be about money because that ad agency makes good money to make those ads and they take pics for free? That is highly unprofessional to say the least.

explorador

2:52 pm on Oct 5, 2007 (gmt 0)

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zett:
Another key learning from this is: when using a photo, DO NOT TRUST THE LICENCE ATTACHED. Especially when the photo carries a "Creative Commons" licence and is hosted on Flickr.

Absolutely true. By now is kinda hard to prove somebody gave you permissions if they later modify the license at the publishing page (their gallery). I know there are ways but you know... for us, developers, is better to avoid problems and look for our own pictures.

Guess nothing at the end is "really free".

Also, some people upload their pictures and there you go, YOU on and AD without knowing or wanting to be there.

zett

4:01 pm on Oct 5, 2007 (gmt 0)

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explorador:

1. Anyone can sign up at Yahoo! and for Flickr using a throw-away email address.
2. Then grab an image from the web they know is protected by copyrights.
3. Then upload the image to Flickr, and assign a CC licence.

And from then on, the users of that image are in the deep gray area, legally.

Too bad that Flickr does not check the identity of the uploader. They also do not check the validity of the CC licence. And they do not check whether a valid model release is present at all.

Those who are using CC images (from Flickr or anywhere else) for serious stuff are in deep trouble. This case shows that commercial users should really turn to trusted sources (e.g. photo agencies or freelance photographers) when planning their campaigns.

cmarshall

5:13 pm on Oct 5, 2007 (gmt 0)

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I work for a company that makes photo supplies.

The one thing I know, from having it beaten into my head over and over again by our counsel, is that, if an image is to be used for a commercial purpose, every single person recognizable in the photograph needs to sign a model release. That's the people in the picture, NOT the photographer or distributor. Our counsel don't care about the license nearly as much as they do that release.

Maybe Oz doesn't have the same lawyer-per-square-inch distribution we have in the US.

There was another similar case, which I can't link to here, in which a photographer took a very poignant image of an Orthodox Jew in Manhattan, and sold it for a lot of money. It was a candid image, and the chap was never credited, did not sign a release, and was given no compensation. He sued, and lost, because the image was art. The only reason he lost was because the image was deemed "art."

weeks

8:20 pm on Oct 5, 2007 (gmt 0)

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ogletree wrote
This is only happening because it is Virgin. They have very deep pockets. People with deep pockets get sued way more than people that don't. They would have never thought to do that if it were some guy working at home or even a small company.

Really? You can read these people's mind? You do not see where anger and disgust might be a logical and human response? You have no idea of the fear a person might have from having lost control of their own reputation, being closely identified with an enterprise you know nothing about? And you have no concept at all for someone exploited like this to desire justice?

jomaxx

9:58 pm on Oct 5, 2007 (gmt 0)

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Anger? Disgust? Fear? Those are mighty colorful words that the lawyer will probably use in the closing argument, but in terms of what actually happened they're a bit much. A girl inadvertently ended up on a billboard on the other side of the planet. Whoop di do.

Miamacs

12:01 am on Oct 6, 2007 (gmt 0)

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...

Perhaps the lawyers will see a great opportunity here, which quite frankly it is, but I'd like to ask you to try and imagine what you'd feel if in a civilized, English speaking country a multinational company was using *your face* as THE example for a sore loser...

And besides, as for how close is far away: did you know where she learned about the campaign? Someone Down Under thought the ad was kinda funny, took a photo of the poster and uploaded it... to flickr. A friend of hers saw it and told her she was in an ad.

I sure hope the agency gets fined by whoever.

Tapolyai

12:46 am on Oct 6, 2007 (gmt 0)

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Interesting no one mentioned that "Creative Commons" was also sued.

weeks

1:20 am on Oct 6, 2007 (gmt 0)

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jomaxx wrote:
Anger? Disgust? Fear? Those are mighty colorful words...

They are just not words. They are real emotions felt by real people.

JS_Harris

7:56 am on Oct 6, 2007 (gmt 0)

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Flickr allows you to share your photos under a license or completely restricted. There are tens of thousands of images on Flickr that can be used to create derivatives legaly.

- Under which license was the picture placed?
- How does one know that the license wasn't changed for that image after it was downloaded?

I think Flickr reps will end up getting involved, otherwise theres no way to know what license rules applied on the day it was downloaded.

zett

9:32 am on Oct 6, 2007 (gmt 0)

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JS_Harris:

- Under which license was the picture placed?
- How does one know that the license wasn't changed for that image after it was downloaded?

Yup, and here are some more questions:

- How does one know that the uploader had sufficient rights to upload the image in the first place?
- How does one know that the uploader had sufficient rights to assign a specific CC licence to an image?
- How does one know which rights have been cleared by the uploader, and which rights still need to be cleared?
- How does one know who the uploader is, really?

Nah, using CC licenced images from Flickr is dangerous for web publishers. You stand with one leg in the courtroom when doing so.

weeks

6:34 pm on Oct 6, 2007 (gmt 0)

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Zett is right on the money.

I'd go even further--unless you have a contract with a provider which assumes liability or you have WRITTEN permission from the persons in the photo (NOT the photographer), you have not shown reasonable due diligence and are legally libel for any and all damages a jury might see fit to award.

This is not just the law, it is what is right ethically.

cmarshall

8:57 pm on Oct 6, 2007 (gmt 0)

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Of course. You can change the license on a Flickr image AFTER the fact! I never put 2 and 2 together, but that makes perfect sense.

Doesn't that make the license basically worthless?

If I were Virgin, I'd be scrutinizing the invoice to see if they charged for photography, and demanding to see the model release signed by Ms. Chang (who is a minor, but I think you need to be 13 to require a guardian's signature), which is the only valid legal document here.

The advertising agency are Quasar stupid. Even if this goes away, no company should ever hire them to do anything more than clean their offices.

JS_Harris

12:33 am on Oct 7, 2007 (gmt 0)

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It all heads back to Flickr.

If I find an image on their site that says I can download and make derivative works from it, and I do so, it's Flickr who stands with one leg in the courtroom should they be wrong. If it turns out that I cannot when Flickr said I could, Flickr is to blame for misrepresenting the image, making it publicly available etc..etc.

The law is funny that way.

Look at it this way, if Flickr posts a mcdonalds logo saying it can be used in derivative works, who will McDonalds go after for publishing the image and misrepresenting it? And when 500 people do make derivative works from it, who will those 500 people point at if they are contacted? All 500 will then be able to sue Flickr for misrepresenting the images.

Flickr isn't an innocent middleman here, otherwise anyone can create a site and freely distribute any pictures and pass the blame along if someone gets mad.

[edited by: JS_Harris at 12:38 am (utc) on Oct. 7, 2007]

weeks

3:26 am on Oct 7, 2007 (gmt 0)

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If I find an image on their site that says I can download and make derivative works from it, and I do so, it's Flickr who stands with one leg in the courtroom should they be wrong. If it turns out that I cannot when Flickr said I could, Flickr is to blame for misrepresenting the image, making it publicly available etc..etc.

Good luck with that. LMAO

jomaxx

5:05 am on Oct 7, 2007 (gmt 0)

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Using a Creative Commons license in good faith might be a reasonable defense with respect to copyright claims. Not an absolute defense, but it would probably carry some weight.

However, as was mentioned above, this is specifically about a model release which is a separate issue. Alison Chang doesn't even own the copyright to the photograph that was used.

foxtunes

11:09 pm on Oct 8, 2007 (gmt 0)

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Virgin will be taken to the cleaners for this, not just money but a boat load of bad PR.

Tapolyai

1:45 pm on Oct 10, 2007 (gmt 0)

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Virgin will be taken to the cleaners for this, not just money but a boat load of bad PR.

No one, besides those who are close to the topic (techies, IP lawyers, webmasters, Flickr fans, etc.) will remember in a month.

Virgin is a media darling and will not be impacted.

Dabrowski

5:13 pm on Oct 12, 2007 (gmt 0)

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I heard of a better one than this recently in the UK. A teenage girl from Telford found her face on a Pawn DVD! (no, the other pawn!)

I believe she was starting proceedings against the US publisher, never heard any more about it. Sorry to turn up with half a story.

As far as I can see, the more community sites pop up, the more image copyright is going to become an issue.

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