Turns Out You Can't Sue Creative Commons Because You Didn't Understand The CC License
from the still-cost-$15k dept
A few months ago we wrote about a somewhat bizarre lawsuit where the family of a teenager sued Creative Commons after a photo of the girl was used in an ad campaign by Virgin Mobile Australia. The details were a bit strange, and it appeared that the family (and its lawyer) were a bit confused themselves, leading them to sue parties that were not responsible at all. What happened was that a youth group counselor had taken a photo of the girl and posted it to Flickr with a Attribution 2.0 license -- meaning that anyone could use it, even for commercial purposes, so long as they gave credit for who took the photo. Virgin Mobile Australia then went and used the photo and others (with attribution) in a poster campaign for its mobile phone service. The girl later discovered all this when someone in Australia spotted the ad campaign with the Flickr URLs on the poster, and thought it was interesting enough to take a photo of the ad and put that up on Flickr. Her family then felt that she was being taken advantage of and found a lawyer who sued Virgin Mobile Australia, Virgin Mobile USA and Creative Commons. It's a stretch to think that even Virgin Mobile Australia has done anything wrong here (it followed the terms of the CC license), but there is simply no rationale for suing Virgin Mobile USA (a totally unrelated company to VMA) or Creative Commons. After all, Creative Commons hadn't done anything here other than exist.If anything, the family could sue the photographer for posting the girl's photo with a CC license without permission -- but, instead, the family included the photographer as a plaintiff in the lawsuit. So, basically, they were suing CC because the photographer didn't understand the license he had chosen and he felt he deserved some money for his own misunderstanding as well. Thankfully, the family and its lawyer seem to have finally (after the fact) taken the time to realize that Creative Commons and Virgin Mobile USA have nothing to do with this lawsuit and have withdrawn the suit on those two firms (I assume the case against Virgin Mobile Australia will still continue). Unfortunately, however, their inability to figure this out before the lawsuit ended up costing Creative Commons approximately $15,000.
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Filed Under: creative commons, flickr
Companies: virgin mobile
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Jurisdiction
The most important point is that the CC license covers the photographer's work, and not anything due to the model (subject.) This was an oversight in the 1.0 version, but it was corrected in the 2.0 version, which I believe is the version he chose.
Australia seems to have a couple laws about using images commercially and photographing children, but it's pretty confusing (especially from this side of the pond.) It does sound like they have a case THERE.
Lastly, all the alleged infringement happened in Australia, so why this was even entertained in a US court is beyond me.
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Re: Jurisdiction
Now, answer me this. A person dies in a traffic accident in Canada. I believe the driver is a Canadian. Yet the wrongful death suit is being tried in the US under Canadian laws and rules. WTF is up with that?
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hmm
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Re: hmm
As a hobby photographer, I have put much of my work up as CC-Attribute. If it shows up in an advertisement, that's exactly what that license is for - they get cheap images, I get free publicity. T-Mobile AUS followed the license to the letter, and these people are complaining because 1) this councilor published pictures of kids online and gave them a license he didn't have the right to use, and 2) they want free money.
Forget them, I hope this lawyer costs them plenty.
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Re AC # 2
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The Photographer was a Plaintiff?
What I find really annoying is that the plaintiffs aren't on the hook to cover CC's court costs -- _they_ decided to sue two entities (VMUSA and CC) and then later drop them from the suit. One of the consequences of dropping the suit should be to cover reasonable court costs for the defendants to that point (and certainly all the court costs if their suit is found to be without merit).
There should be consequences for suing people without having a sound reason for doing so. It should have been their lawyer's job to tell them there was no reason to sue CC / VMUSA.
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Re: The Photographer was a Plaintiff?
CC should counter-sue the plaintiffs to recover their $15,000 and another $45,000 (treble)on top of that.
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Re: Re: The Photographer was a Plaintiff?
I agree that CC should not be out $15,000 but at this point I think their best option is to cut and run. They got out cheap relative to what Virgin Mobile Australia will probably have to pay in the end no matter who wins the suit.
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As someone else said, just because a photographer has no desire to be paid for use of his/her images does not mean that the commercial user of the image is no longer required to ensure that the photo is properly model released.
The family of the girl could also sue the photographer for not obtaining a release and they would be successful IF the photographer indicated to Virgin Mobile Australia that the photo was model released, or if a court decided that due to the way it was presented to Virgin Mobile Australia they would have assumed such. Because it was put up with that CC license one MIGHT assume that the photographer has taken care of releases, but I think you'd be a fool not to chack up on it. Most Flickr users don't even know such things exist.
Personally I think that any corporation looking for freebies on Flickr ought to be doubly careful to make sure that there is a release for every image they use of a person.
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Re:
The CC license the photographer used clearly states that it's ok to use the photo for commercial purposes. So, it's not about him saying "I don't want to be paid." The purpose of the CC license is so that you DON'T have to go ask for permission, that permission is already granted.
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Re: Mike
The confusion appears to be because professional photographers typically secure the release rights before selling a picture, if it is required. Non-commercial uses don't typically require model releases (thankfully) so, unsurprisingly, amateurs do not obtain them. To expect that they have is a massive oversight for a major company like VM AUS (or their ad company) to make.
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Re: InkChemist
Seriously, no snark here, heartfelt thanks only.
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Model Release - WTF you ain't that pretty!
What happened to responsibility. Your opportunity to whine and squirt tears occurs when the photographer is taking the picture. Not after some elaborate facebook/flicker/CC entrapment scam.
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"Model release" doesn't mean model like fashion model. It means an agreement that the subject signs that allows the photograph to be used in circumstances not normally provided for under journalistic/public etc photography law. Model releases are required by law in order to use a photograph of someone to advertise your product. Obtaining the release is the responsibility of the publisher, NOT the photographer. In this instance it is Virgin that is culpable for not obtaining the release.
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Creative Commons Lawsuit (Virgin)
So, what Virgin SHOULD HAVE done (or whoever uses the image) is contact the poster of the image, and get the actual signature 'model release' form from the girl, and also the confirmation of usage from the photographer, and have it on file. otherwise, 'not knowing that the CC license wasn't intended' is the responsibility of Virgin, it seems to me.
If this were a piece of music used in a nation wide ad, even if the ad agency 'thought' the piece was 'cleared' they are still responsible. that is why trust with the licensing agency, or musician is very important to the ad agency, becuase they have to TRUST that they are being told the truth about how it's 'clear to use'. otherwise, they get their butts sued. The same should go for an image.
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PS - (regarding Virgin Lawsuit)
In any case, Virgin should be sued for an amount that a model would make for the image, based on how long it will be used, and the other aspects of the ad(s), plus some, to discourage this. If they were sued, they would probably simply settle. the photographer should be sued for being naive and stupid, perhaps, or mayby Flickr for not providing a copy of the actual license (which they prob. do by using a link to CC).
I say, sue Virgin. they targeted an unsuspecting person (the girl) to take advantage of. the bastards.
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