A head-on collision in the world of commerce and creative commons
September 26th, 2007My very good friend Ian Kirk and a great brand strategist BTW sent me this link Creative Commons sued for deception
And it presents a very moral dilemma. Based upon the Jordan principle (AKA Katie Price) what you see in front of you is perhaps not always the full story.
So this is the story
A film maker, Damon Chang, uploaded a family photograph of his young niece Alison to Flickr, only to discover weeks later that it was being used by Virgin Mobile in an expensive advertising campaign. Neither Alison Chang nor her youth counsellor Justin Wong, who took the photograph, have received compensation for the use of the image – having handed over the rights without realizing it. Damon Chang used a license which permits commercial reuse – and even derivative works to be made – without payment or permission of the photographer: merely a credit will do to satisfy the terms of the license.
Both Changs believe the use of the photograph was insulting and demeaning, as Alison – a minor – became known as the “dump your pen friend girl”. And after taking legal advice, the Chang family is now suing Virgin Mobile USA and the Creative Common Corporation.
Virgin hoovered up over 100 “user generated” images for its ad campaign – saving itself a fortune. The lawsuit accuses Virgin of invasion of privacy, libel and breach of contract – as the advertiser failed even to do that. But it’s the section of the lawsuit that names and shames Creative Commons that promises have lasting consequences for “Web 2.0″ and “user generated content”.
Is it outrageous that Virgin mobile “nicked these images” legally, is it outrageous that 57 million people were illegally downloading music files at Napster before it was shut down in its orginal incarnation? Is is morally, and legally outrageous that so much content is ripped off and played out on YouTube?
The pendulum always, always swings in 2 directions. Creative Commons is utopian in many senses, the idea that ideas and information should not be locked down.
The notion of a shared culture is better than a notion of a locked down culture. Creative Commons is part of that idea. Though recognition should be due of where that source came from.
For me, we know there are some people out there claiming our concept of the 4C’s: Commerce, Culture, Community and Connectivity as their own, and even use our slides, without ever referring to the source.
Does it piss me off. Yes it does, what can I do about it nothing. But then I belive in Karmarama, and at some point that person will be shown to be a fraud and lacking in any orginal ideas.
Tomi and I have more ideas than you could shake a stick at. Anyway I digress.
Rather than the Changs suing everyone, very much a US mindset, why not use Facebok, Myspace and other community platforms to ensure Virgin Mobile look foolish and stupid.
Leverage the power of your community Changs. I feel your pain, but like the principles of free speech in democracy, there are those that choose to abuse it. Does that mean we lock down everyones liberties as a consequence? (Big debate I know)
By signing up to the legal lock down culture, you become one of them.
Do some culture jamming and make Virgin Mobile look like the fools they are. Common courtesy is something I do believe in, so it would not have hurt Virgin to have least behaved in a mature and adult manner. Ultimately its their behaviour that reflects badly on them and damages their brand.
Play them at their own game.
Now then where’s the number of the dickhead that is using our 4C’s slides (only joking)
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3 Responses to “A head-on collision in the world of commerce and creative commons”
By Dan Thornton on Sep 26, 2007
I think the main problem here stems from the fact the photographer originally uploaded the image with the Creative Commons Licence, and that it implies that the photograph is fine for use (either commercial or non-commercial depending on the licence).
I’d tend to stick to only using Commons Licences for non-commercial purposes. And I’d also try and avoid using any Commons Licenced work for anything remotely commercial without contacting the source first to gain explicit permission.
And I’d agree that they would have had a more positive response by trying to gain public support against Virgin, and perhaps either getting the ads cancelled or some monetary compensation etc, rather than running straight to a lawyer and now risking paying more in court costs and potentially damaging the concept of CCL (Even if the theory doesn’t work so well in practice).
By David Cushman on Sep 26, 2007
I think the issue here is beyond image rights, it’s the damager to an individuals reputation. It’s a timely reminder that without context there is no meaning – and that applies to any image. The image means something in the context it is used. Use my picture as an example of a nice chap and I’m happy. Use it to describe evil people and I’m less so.
When we publish pictures of people we are messing with their identity. That’s why we have to take care.
By alfie on Sep 26, 2007
( I just pressed preview on my comment and it seems all the HTML is being stripped out, so none of the supporting links to evidence in the below are maintained
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I originally saw this covered quite some time ago:
virgin mobile aus. in the wrong
The issue once boiled down, imho, is quite simple, and informed by analysing local laws, the CC license used, and the rights of photographers and Subjects:
The photographer did not seek permission from the minors parents
the fact the photographer did not understand or did not choose the correct license is again, his fault and responsibility.
Firstly there is the issue of personality/individual image rights. In Australia, there are no explicit rights of publicity or personality, so in the case of Alison, since her image was not captured in a group or public place/beach, she likely has no model or other rights as the subject of the image. However, since she was a minor (at 15), there is some evidence that her image rights are protected by law, as any photography of a minor must have had prior authorisation by the parent(s).
The next, and integral element is the creative commons license applied in this case, a by attribution full commercial use license:. Since this is the case, the photographer has implicity given anyone the right to use the image in any way, as long as original authorship is attributed. I think it is disengenous to cast aspersion on Virgin’s use, simply because they are “Virgin” – i.e. a large company. This use is precisely what CC exists for, and barring the photographers stupidity, was a great execution of a nascent copyrighting system with great merit.
The interesting thing here is that Virgin would not be liable (imo) for the use of a minor in their campaign, as that responsibility defaults to the photographer.
All in all, photography rights are a mess all over the world, especially since the advent of the digital camera, but in this case, because it seems that the only “wrong-doing” is that the image was of a minor and perhaps permission wasn’t obtained from the parent, the only liable person here is the photographer.