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.

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).