Family sues Creative Commons

[starcraft.man]

Came across this article on Slashdot. (http://www.smh.com.au/news/technology/virgin-sued-for-using-teens-photo/2007/09/21/1189881735928.html)

It seems absurd to me that someone would try and sue Creative Commons, they are just a licensing nonprofit organization and aren't responsible for what people do (wrongly or not) with the works licensed.

Anyway, read the article I'm curious what people think. Far as I can see everything seems fine. The original photographer took an image in a public place and chose to license it under the CC attribution only license. Virgin Australia in turn then took the image, remixed it and employed it for commercial use in an ad campaign, all of which is permitted under the license the originator chose.

I guess Virgin could have notified the girl but it doesn't seem to me that is required by the license or the law (I'm not a lawyer though). The fact that the original was in a public place seems to mitigate any waiver needed to use the people in it, in the same way other pictures taken of public places don't require you to notify everyone.

What's the deal? Did something wrong happen here? Is it just a fishing expedition for money? Comment away...

[RAV TUX]

Came across this article on Slashdot. (http://www.smh.com.au/news/technology/virgin-sued-for-using-teens-photo/2007/09/21/1189881735928.html)

It seems absurd to me that someone would try and sue Creative Commons, they are just a licensing nonprofit organization and aren't responsible for what people do (wrongly or not) with the works licensed.

Anyway, read the article I'm curious what people think. Far as I can see everything seems fine. The original photographer took an image in a public place and chose to license it under the CC attribution only license. Virgin Australia in turn then took the image, remixed it and employed it for commercial use in an ad campaign, all of which is permitted under the license the originator chose.

I guess Virgin could have notified the girl but it doesn't seem to me that is required by the license or the law (I'm not a lawyer though). The fact that the original was in a public place seems to mitigate any waiver needed to use the people in it, in the same way other pictures taken of public places don't require you to notify everyone.

What's the deal? Did something wrong happen here? Is it just a fishing expedition for money? Comment away...

(not being a lawyer or a judge, and this being my first quick impression)

Ultimately the Youth Counselor(Justin Ho-Wee Wong) should be held responsible unless he got prior consent from the girls parents to post her picture on the internet, perhaps Virgin mobile but not Creative Commons, interesting that Flickr or Yahoo weren't included, not that they should be but if the parents included Creative Commons why not Flickr and Yahoo?...and why not the Youth Counselor(Justin Ho-Wee Wong)?

One big question that comes to mind is what Creative Commons license did Justin Wong choose?...and when he realized he made a mistake did he change it?

from the Flickr website here is his options:


http://ubuntuforums.org/attachment.php?attachmentid=44126&d=1190471909I can understand Justin Wong as a Youth Counselor wanting to share the photos with the Youth and their families but then he should have been responsible enough to select the appropriate privacy settings and just shared the images with friends and family, also if he is posting images of peoples children frequently then he should have set his Flickr Global settings appropriately:

The privacy settings selector from Flickr,


http://ubuntuforums.org/attachment.php?attachmentid=44127&d=1190472364

[samjh]

I don't understand why they're suing Creative Commons, or even Virgin Mobile USA. If anything, they should engage Virgin Mobile Australia.

On the other side of the coin, I can understand that the girl's parents do not appreciate an image of their child being used for public marketing purposes without consent. Consider that the ads weren't entirely clean - there was some content which people could consider implicitly linked to the girl, to the extent that if they saw her on somewhere, people could have a negative opinion on the girl herself.


why not the Youth Counselor(Justin Ho-Wee Wong)?It would be safe to assume that he had permission from the girl herself to post the picture on Flickr.

The problem is not the posting. It's the commercial exploitation of the person without consent. The licence of the photo is immaterial. If you posted a photo of your child on a personal website, and your child was used on an advertisement without you or your child' consent, would you not be angry? I would! Because the issue is not the misuse or the photo, but misuse of the child's image.

People should be able to post a photo on the web, regardless of licence, without the featured person being exploited without consent, especially when this exploitation involves attaching negative connotations to the person.

[southernman]

That's just plain weird!

Key points I see:

1- The girl clearly posed for the picture. duh!
2- Although her youth counselor took the picture, with her willing consent... did she actually give him permission to post it on his flickr page at all, regardless of the licensing he choose.
3- Being a youth counselor, the guy should have known not to post pics of someone else's child on the www.... especially using such a loose license. Just asking for trouble.
4- Like you, I don't see Virgin Mobile, or the CC at fault. Perhaps VM should have contacted the girl and parents of hers. I think they obeyed the CC license to the extent they were supposed to
5- It's absurd that the youth counselor (Justin Ho-Wee Wong aka Justin Ho-Wee W"R"ong)is also seeking damages.
6- Mr Wong, should no longer be a youth counselor in my opinion.
7 The parents of that young lady should be suing Mr. Wong, for posting her pic to the www, if explicit permission was not given, regardless of the license chosen to use!

Just an average layman's point of view... YMMV

[starcraft.man]

Ultimately the Youth Counselor should be held responsible, perhaps Virgin mobile but not Creative Commons,
I agree. I can't understand why, but the counsellor is actually on the plaintiff side even though his choosing of license was ultimately responsible for everything. He should have been much more aware of the implications of the license. He has since moved to full copyright on his gallery.



interesting that Flickr or Yahoo weren't included, not that they should be but if the parents included Creative Commons why not Flickr and Yahoo?
A good question. Maybe they didn't think they could get away with including too many organizations?

Edit: Southernman, I agree with your points. If anything the counsellor has a large portion of fault in this case, he should have known better.

[PatrickMay16]

Oops, they should be suing Virgin. Not creative commons.

The way the picture was used really is insulting, though.

[moeFinley]

I just flicked through the article. It doesn't seem to say anywhere that they are suing the people responsible for the Creative Commons licence, does it? They are only suing Virgin Mobile.

Still it doesn't look like they have a very good case as Virgin gave full credit to the photographer.

[starcraft.man]

One big question that comes to mind is what Creative Commons license did Justin Wong choose?...and when he realized he made a mistake did he change it?

from the Flickr website here is his options:

I read through the comments on the page, it appears the license used on the image was originally CC 2.0 Attribution only. (http://creativecommons.org/licenses/by/2.0/deed.en) This license has no restriction on distribution or remixing and can be used in commercial work. It's only clause is attribution. He did change it, but that was after it was used in the ad campaign, that hardly seems relevant to Virgin's use. If he licensed it improperly up until it was used it's his fault.



I just flicked through the article. It doesn't seem to say anywhere that they are suing the people responsible for the Creative Commons licence, does it? They are only suing Virgin Mobile.

Still it doesn't look like they have a very good case as Virgin gave full credit to the photographer.

From the article:

The lawsuit, filed in Dallas late yesterday, names Virgin Mobile USA LLC, its Australian counterpart, and Creative Commons Corp, a Massachusetts nonprofit that licenses sharing of Flickr photos, as defendants.

[southernman]

Oops, they should be suing Virgin. Not creative commons.

The way the picture was used really is insulting, though.

Just to add to my original post... After reading over the article again, I agree.

Virgin, likely to be found libel for defamation but not anything else.

Mr Wong still deserves to be named in the suit.

[n3tfury]

US citizens

sue


who would've thought?

[RAV TUX]

I read through the comments on the page, it appears the license used on the image was originally CC 2.0 Attribution only. (http://creativecommons.org/licenses/by/2.0/deed.en) This license has no restriction on distribution or remixing and can be used in commercial work. It's only clause is attribution. He did change it, but that was after it was used in the ad campaign, that hardly seems relevant to Virgin's use. If he licensed it improperly up until it was used it's his fault.



From the article:

Thanks for the 411 starcraft.man I still feel the Youth Counselor Justin Wong was in the Wrong and should ultimately be held responsible. He was trusted by the parents to not only watch over their children while in his company but to also be responsible enough not to plaster the internet with their images. The question comes did the parents sign a consent form to allow Mr. Wong to post these images?

It sounds like Mr. Wong just made a stupid mistake, but he should still be the one held financially responsible for any damages to this poor little girls life, if Mr. Wong had posted these images on a porn site their would be no question of his accountability.

Virgin while legally, most likely acted within the realms of the law should have been smart enough to:

1. used only a model with prior expressed consent, under contract
2. If using an image of a minor licensed under the CC license, then they should have as a respectable courtesy and to cover their a$$, obtained prior consent from the parents.

Virgin should owe nothing to Mr. Wong since he was in the Wrong and had licensed his image(of minor children in his care) under the CC license.

It sound like the only thing Mr. Wong could inevitably say is: I am a complete idiot, I screwed up so lets sue Virgin and CC. NO! Mr. Wong you were in the Wrong and you should be held completely accountable.

The courts will decide if Virgin is financially responsible(unless they have an out-of-court settlement), it sounds like the CC license will inevitably not protect Virgin in this case. I am still surprised that Virgin did not cover their a$$ with prior consent or why they did not pay a model in the first place. It would have been cheaper to use a model then to pay the legal fees that will ensue, even if they have a herd of lawyers on their payroll. It sounds like someone at Virgin may lose their job over this one.

[Nano Geek]

Well, here's what I think of this.


This sounds like a frivolous lawsuit to me. The fact that the photographer is suing as well sounds strange.
While I think that, although technically Virgin wasn't breaking the law, they should have asked and payed for the use of that picture.
Since the photographer is in the same lawsuit, I'm guessing that he is a friend of the family and they they wouldn't sue him.
The photographer should have taken care not to put pictures of others under such a free license
They have absolutely no reason to sue the CC because he chose to use that license, if he didn't like it, then use something else.

[Anthem]

Virgin doesn't need to ask to use a CC license. THAT'S THE WHOLE POINT OF CC!

The photographer is at fault here, nobody else.

[Nano Geek]

Virgin doesn't need to ask to use a CC license. THAT'S THE WHOLE POINT OF CC!

The photographer is at fault here, nobody else.However it is considered the right thing to do to ask and pay before you use someone else's picture in you advertisement.