Fair-use? Commercial use of your Flickr photos

http://www.cnn.com/video/#/video/us/2007/09/24/intv.virgin.flickr.lawsuit.cnn

 

I found this one pretty shocking, and I certainly won't be posting anything to

Flickr.

You might want to understand the facts a bit more closely. From the linked video interview it seems the photo was taken by someone who posted it on Flickr under a Creative Commons license. The CC license is not a copyright, it is the opposite, a defined free-use license. The young girl who appears on the billboard who is suing Virgin Mobile is not the photographer, she is the subject pictured in the photograper's photo. Whether or not Virgin had the right to appropriate her likeness without a release is a separate matter, but it sure looks like it had a licenseto use a photo posted under the CC license. <p> I believe that Flickr gives you the option to post either with a copyright or the CC license. I seem to recall thatthe default was a copyright, but am not really sure. Whether it's the default or not, unless Flickr forces you to grant a CC license as a condition of posting, which I don't believe it does, simply by making sure you post your photos as copyrighted by you would leave you copyright rights if a commercial use was made of your images.

Well, I'm hoping somebody does steal one of my photographs so I can sue them. Then I'll be able to get an M8 and go on a long trip.

The CNN report misses a key component. The photographer who posted the photo on Flickr checked the box that allows other people to use it as long as he is credited, which as you can see in this screen grab from CNN, he was. In the first reports I saw about this he was also suing as he thought he wasn't credited. Since he was choosing that option it was his responsibility to understand what that meant and to have a model release for the people in his photos.<P><B>It is the photographer's responsibility to get model and proerty releases if you are going to make your photos available for commercial usage.</B><P>I don't doubt that Virgin Mobile Australia will settle with the poor girl and that the ad agency that did the campaign is going to be fired or least the creative team and legal department that put the campaign together and okayed will likely be sacked.

sorry I forgot the attachment.<div></div>

Andy and Ellis point out what is easily determined, although not apparently by CNN, which is that there was no license violation. I post on flickr and do not agree to the CC license, which is what people should do if they don't want to see their photos appear elsewhere. If you read the standard flickr/Yahoo license, it's not bad as these things go, although they can use your photos to promote their own site.

 

FWIW, all my contracts have a clause that says the publisher of the photos is responsible for having all the appropriate releases. I have them anyway, and I'm not sure it's enforceable, but so far everyone has signed it.

Thanks for the responses, all, and it looks my original post was unnecessarily alarmist. This certainaly serves as another warning to read the fine print, though.

Ellis,<br>

The article on model releases posted on Wikipedia indicates responsibility ultimately lies with the publisher, not the photographer.<br>The photographer is usually the one who collects the release because a) he may also publish the photograph, and b) it's more convenient that way.<br>

I'm not disputing what you are saying. You obviously have experience in this. So is the article incorrect?

<br><br>

<a href="http://en.wikipedia.org/wiki/Model_release">model release</a>

An additional twist to this, and which may see the photographer actually being pursued by the authorities/found liable in some way, is that the girl in question was apparently under-age and no parental permission was sought before he (the photog) posted her images on a public forum with a CC licence, therefore allowing free use of that image by whomever wished.

A chain is only as strong as its weakest link. Tradional stock agencies require their photographers to supply ther releases so the chain of responsibility goes something like this: photographer > stock agency > ad agency > ad agency client .<P>

 

Sourcing through Flickr the chain of responsibility goes photographer > ad agency / designer > client. <P>

 

Being curious about all of this , I just looked up the "Creative Commons" FAQ and here is what it had to say about "publicity rights" (which is what this case involves:<P><I><B>

 

When are publicity rights relevant?</B><P>

 

Publicity rights allow individuals to control how their voice, image or likeness is used for commercial purposes in public. These rights are relevant to any work that contains human subjects, such as photographs, audio or video interviews, plays, songs, and other spoken or visual content. When transmitting this sort of content, including the voices or images of anyone other than yourself, you may need to get permission from those individuals if you are using their voice or images for commercial purposes. This is a distinct and separate obligation from obtaining the copyright license, which only gives you a license from the author (or photographer) but not from the subjects. A Creative Commons license does not waive or otherwise affect the publicity rights of subjects.<P><B>

Does using a Creative Commons-licensed work give me all the rights I need?</B><P>

 

You should be aware that all of the licenses contain a disclaimer of warranties, so there is no assurance whatsoever that the licensor has all the necessary rights to permit reuse of the licensed work. The disclaimer means that the licensor is not guaranteeing anything about the work, including that she owns the copyright to it, or that she has cleared any uses of third-party content that her work may be based on or incorporate.<P>

 

This is typical of so-called ?open source? licenses, where works are made widely and freely available for reuse at no charge. The original version 1.0 of the Creative Commons licenses contained a warranty, but we ultimately concluded that, as with ?open source? licenses, warranties and indemnities are best determined separately by private bargain, so that each licensor and licensee can determine the appropriate allocation of risk and reward for their unique situation. One option thus would be to use private contract to obtain a warranty and indemnification from the licensor, although it is likely that the licensor would charge for this benefit.<P>

 

As a result of the warranty disclaimer, before using a Creative Commons licensed work, you should satisfy yourself that the person has all the necessary rights to make the work available under a Creative Commons license. You should know that if you are wrong, you could be liable for copyright infringement based on your use of the work.<P>

 

You should learn about what rights need to be cleared and when a fair use or fair dealing defense may be available. It could be that the licensor is relying on the fair use or fair dealing doctrine, but depending on the circumstances, that legal defense may or may not actually protect her (or you). You should educate yourself about the various rights that may be implicated in a copyrighted work, because creative works often incorporate multiple elements such as, for example, underlying stories and characters, recorded sound and song lyrics. If the work contains recognizable third-party content, it may be advisable to independently verify that it has been authorized for reuse under a Creative Commons license. If the work contains images, voices, or likenesses of people, educate yourself about publicity rights.<P>

 

The result of this is that you should always use your informed good judgment, and you may want to obtain legal advice.</I><P>

 

It also lays out 4 basic options for how you wantthe photogrpah to be managed under a "Creative Commons" agreement:<P><I><B> What are the terms of a Creative Commons license?</B><P>

 

The key terms of the core suite of Creative Commons licenses are: Attribution, NonCommercial, NoDerivatives and ShareAlike. These license elements are succinctly described as follows:<P>

 

 

Attribution=you must attribute the author and/or licensor in the manner they require.<P>

NonCommercial=you may not use the work in a manner primarily directed toward commercial advantage or private monetary compensation.<P>

NoDerivatives=you may only make verbatim copies of the work, you may not adapt or change it.<P>

ShareAlike=you may only make derivative works if you license them under the same Creative Commons license terms.<P>For an overview of our licenses and links to the Commons Deed and Legal Code, check out

<A HREF = http://tinyurl.com/bgvzpes> this page.</a> For the key details of our Sampling Licenses check

<A HREF = http://tinyurl.com/2ew8jj>this page.</A></I><P> I'm <U>not</U> a lawyer, but all of this begs a couple of questions: Which "Creative Commons" license model (if any) did the photographer choose to use when he was uploading to Flickr? And wh owas responsible atthe ad agency for checking whether or not the photographer had a release from the girl's parents? <P>Outside of that and to answer your question directly. I'm not a lawyer, I'm especially not a contracts lawyer, and I'm especially not a contracts-relating-to-rights-of-publicity lawyer, so I'm not going to argue with somebody's opinion in a Wikipedia entry. Life's too short for that.

If you are REALLY interested in this issue there is a thread on Flckr that shows the original offending image and the response from the girl involved, then the various posts from her brother, and the photographer, then lawyers and all sorts:

 

That flickr thread is interesting. If the people involved really wanted to win a case, they would have kept their mouths shut, but you can see family, etc. in the middle of it. And to answer Ellis' question about the license, it sounds from the discussion at flickr that it was the most liberal license. Also, the CC license explicitly states that it is the photographer's responsibility to have the release, from what I can see.

 

Everything seems to point at the photographer, but since he appears to be a family friend, they have decided to sue someone else. I could be wrong, but this really smells of greed.

Jeff, there is at least one passage in the FAQ, posted above by Ellis, that seems to contradict the notion that it is the photographer's responsibility to have the release:

 

"You should be aware that all of the licenses contain a disclaimer of warranties, so there is no assurance whatsoever that the licensor has all the necessary rights to permit reuse of the licensed work. The disclaimer means that the licensor is not guaranteeing anything about the work..."

 

This passage would seem to shift responsibility to the licensee (in this case, Virgin Mobile or its agents) to ascertain that all necessary permissions have been obtained.

 

I haven't looked at the wording of the license itself. Perhaps that confirms your point; but if it does, it would seem to contradict the posted passage from the FAQ.

 

The business model in which photographers secure all necessary permissions and agencies guarantee them to their cleints is a sound one. Here, it appears that an ad agency grabbed amateur-created content off the web and used it in a major corporate campaign without asking all the necessary questions. The novelty and ambiguities of CC licensing didn't help the situation, but I think the agency has a lot of explaining to do.

Virgin Mobile (or their agents) screwed up by not clearing the image for publicity rights. Whether there are defamation or privacy issues may depend on the state/locations/countries of the alleged injuries or infringements.

 

The photographer may have been innocent of the commercial value of his image and by offering it for free may have devalued the world market for photography and taken bread from the mouths of thousands of professional photographers.

 

There won't be prosecution in Australia for a picture legally taken and posted in the US. That's silly. (He's apparently a family friend and there's no evidence they are unhappy with him anyways.) One should do a fair amount of filtering, critical thinking and cross-checking before depending too much on the random postings to web threads.