Flickr User Sues Creative Commons Over License

Flickr User Sues Creative Commons Over License

A church youth group leader takes a photo of a teenager and posts it to Flickr. He licenses the photo with a Creative Commons Attribution license, which allows anyone to copy or modify the photo as long as they credit him as the photographer. Virgin Mobile Australia does just that: crops the photo, adds a bit of snarky text, and uses it as part of an ad campaign – without contacting the photographer or the subject to secure any other rights. What do you think happens next? Yup, the photographer, the teenager, and the parents all sue Virgin Mobile... and Creative Commons!

Virgin Mobile is an easy case. Through the license the photographer waived his copyright interest in the photo, but that license didn't extend to other legal issues, namely the subject's rights of privacy and publicity. To commercially use a recognizable image of a person (using their photo in an ad, for example, making it look like they endorse your product), you need their permission. And the fact that the subject of the photo is underage adds another hurdle. Since Virgin didn't obtain a model release from the girl or her parents, they are pretty clearly liable.

But what could Creative Commons have done to merit a lawsuit? According to the photographer, he didn't realize that by licensing his photos Attribution Only, he was agreeing to commercial uses like advertising. He alleges that Creative Commons has a duty to inform him, a nonlawyer, of the legal consequences of adopting their standard form license.

It's not clear that they do have such a duty – there's no US law on the issue because it's never, to my knowledge, come up before. Creative Commons wasn't offering legal advice, but they were explicitly targeting non-legally-sophisticated users (i.e., separating their licenses into Human Readable and Legalese) and urging them to use CC's form licenses. There is an argument to be made, but I doubt it'll succeed. The duty to explain that “commercial” means commercial is a bit much, and no licensor could ever explain all the things its license doesn't do. Nice try, though.

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Darth Ninja

As someone who hardly ever reads the eula i found 'EULAlyzer' very helpful (That was one eula i did read :P)

http://tinyurl.com/247gc8

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docowskey

This case is a perfect example of how websites take advantage of their users. Every time you create an account on any website that lets you post, they make you accept a long user agreement that is so hard to understand that most people cant understand anything past the first paragraph. Most people don't consider what will happen to the work they worked on until after they post it, when its too late.
Its pretty low down and dirty of anyone to take pictures for their adds off of the internet without crediting and compensating the artist.
I hope VM has to pay for what they did, and Creative Commons should be forced to change their EULA and licensing terms.

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erin

Whoa there, I'm all about the EULA issue, but what happened here wasn't it. When the photographer posted the photo to Flickr, he had to manually and affirmatively choose to license it the way he did. Flickr's default is All Rights Reserved. The photographer may not have understood what he was doing, but he chose the Attribution license totally freely. The license clearly permitted commercial uses, so Virgin was under no duty to notify or compensate the photographer. His freely-chosen license said "use this for anything as long as you credit me," and that's what Virgin did.

Whether or not he /understood/ what he was offering is a separate question, as are the privacy and publicity rights of the /subject/ of the photograph.

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Rennfield

While I agree that yes people will sue over anything, in my opinion we still aren't getting the whole story. All we know is that the case (assumption here) went straight to court. This could be wrong and they could have tried to settle out of court by making VM (Virgin Mobile) pay a standard modeling fee in exchange for not taking them to court. Also what isn't said is whether or not this should be handled under US law or Australian law, I'm guessing US since that is where the lawsuit originated. But this can also be a good thing, as like they say in the business world: "Any exposure is good exposure."

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dethdeks

this one just goes to prove that people will sue over any stupid little thing. honestly its a picture get over it. the only people out of that whole write up that should be sueing is the parents of the kid in the photo cause the kid was underage, not the photographer. whats next? whats next? photographers sueing people for tearing out photos from there fav mag and putting them on the wall and maybe drawing on them. like come on people Grown the hell up. if you want money that damn bad go out and get a damn job and earn it.

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nedwards

Having a picture of you used to promote a commercial product without your permission is not "any stupid little thing," dethdeks. Virgin didn't ask for permission or a model release from the subject, which is standard no matter what rights you have to the photographer's work. They also didn't ask or notify the photographer that they were using his image. Right now too many ad agencies see Creative Commons as a way to get high-quality stuff without having to pay for it, and they don't understand that just because something's not all-rights-reserved, it doesn't mean they can do whatever they want with it.

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