church youth group leader
photo of a teenager
and posts it to
. He licenses the photo with a
, 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.