Virgin Mobile Botches Creative Commons-Driven Ad Campaign
Virgin Mobile in Australia took advantage of the huge repository of photos on Flickr that are licensed for commercial reuse under Creative Commons, incorporating dozens into billboards, newspaper ads and a web site.
Unfortunately for the company, the license covers the photographer's copyright but not necessarily the people in the pictures. In many countries, including the U.S. and Australia, you can't use someone's photo commercially without their permission.
Shelley Powers puts the blame for this squarely on Creative Commons for not educating users of its licenses. If you release photos for commercial reuse, but you don't secure model releases from people they depict, you're subjecting yourself -- and those who use your work -- to a thorough proctological workup by an intellectual property attorney.
There is still a massive misunderstanding about the terms used in these licenses, and little done on the part of the CC promoters to do anything other then grunt, "CC, Good!"
I'd put more of this on Virgin Mobile's ad agency, which presumably knows the model release issue a lot better than amateur photographers on Flickr. But if Creative Commons has done anything to educate photographers about the commercial rights of their subjects, I haven't seen it.
Making matters worse, Virgin Mobile is using the ad campaign to insult the subjects, as in this photo of computer book author Molly Holzschlag:
I'm guessing that a bunch of people are about to get free phones.
Comments
I imagine since it is Australia, nothing much will happen. They seem to have picked photos and people outside of the country.
Even now, though, people are confused about what the 'commercial' in the cc license means. I don't think CC has done a good job educating people on the consequences.
This isn't a problem with the definition of commercial in the CC licences - presumably Virgin only used photos that were under a licence that allows commercial uses (or else they'd be in breach of the licence - which they will be anyway if they haven't attributed the authors).
It's about whether or not the CC licences should cover issues that go beyond copyright law, and whether people who release material under CC licences should be responsible for making sure they're obeying all the laws they need when they do it.
I still think it's Virgin's fault - you only have to get model clearances if you're using photos commercially, so the people who put them up on Flickr were obeying the law. While the CC licence gives Virgin copyright clearance, it doesn't say it gives them any other clearance. Their lawyers should have known better.
This is totally not a copyright matter. Model releases don't come within copyright licensing, so why should CC inform people about it?
The user who posted the image did so non-commercially, which doesn't require a model release form. Virgin DID USE IT COMMERCIALLY, and their lawyers are paid a lot of money to know that they DO NEED A MODEL RELEASE FORM.
Also, does the CC licence require attribution? Why are people trying to burn the photographer at the stake when Virgin didn't have a release form and were in breach of the CC licence?
This is totally not a copyright matter. Model releases don't come within copyright licensing, so why should CC inform people about it?
Because it's an issue for everyone who releases a photo of people under a license that permits commercial reuse (or reuses one the photo).
There's a level of irony in this particular picture that I'd like to point to. The person I'm talking with is the head of Web Development for Yahoo! Europe - and Yahoo! is of course Flickr's big daddy. Virgin really stepped in it but good.
Go get 'em Molly. Could be your ship has pulled into port... A cool million, maybe?
Incidents like this weren't hard to predict, which is why I've made (even before this incident) my people photos All Rights Reserved even though in general I use CC-by.
Certainly, Virgin's ad agency had the responsibility to know about the legal stuff of their trade, but if you don't want others to use your people photos out of context or in a manipulated form, marking your people photos ARR is the prudent thing to do.
I'm not trying to suggest ARR as a knee-jerk solution to any unwanted use problem. I just have a hard time seeing legitimate use cases where you'd want a third party to grab some people photos from Flickr without going through the "permission culture" legal dance. Of course, I do realize that the photographer using his/her copyright to protect the people depicted isn't theoretically the right way.
What will be the long term effect of this incident? Probably, corporations will be more wary to use images released under a CC license. The CC organiztion is undercutting itself by not making these issues more clear for users of their licenses.
It's by no means a dunk shot that these people will be able to get damages. There're several legal dots that need to be connected. I doubt any of these people are working models with an expectation of payment, proving that viewers really consider the ad a serious accusation of bad hygiene will be hard, and so on.
Virgin will offer them modeling payment and make them sign a release--and tell them to litigate if they don't want to accept that.
Suggestion that the photographer is responsible is nonsensical. Using a license that permits commercial use does not mean you are warranting that the photos can be commercially re-used without having to secure model releases. It just says that copyright permission is granted.
Lawrence Krubner: this should not make responsible organizations more wary to use CC-licensed images. A responsible corporation should have the sense to understand the law, and a company the size of Virgin should damn well have known better. There is no responsibility for Creative Commons to educate people in the law, and that copyright is not the full extent of rights in an image.
It hopefully will provide a lesson for companies that there are reasons why photos from stock agencies cost money - because there are guarantees provided with them (e.g. that model releases have been obtained). Free licensed pictures from Flickr do NOT substitute for professional photographs suitable for advertising use, especially if one does not do one's homework.
I hope, personally, that Virgin did not take the cynical approach that if it used photos of non-Australians, the cost of those individuals to enforce their rights under the law would be prohibitive.
hahaha....
so funny that i only heard of this whole subject today.
here's a newer article...
www.dallasnews.com
oh.. and thats not cool... u.u
Certainly, Virgin's ad agency had the responsibility to know about the legal stuff of their trade, but if you don't want others to use your people photos out of context or in a manipulated form, marking your people photos ARR is the prudent thing to do.I hope, personally, that Virgin did not take the cynical approach that if it used photos of non-Australians, the cost of those individuals to enforce their rights under the law would be prohibitive.digital frames
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