Virgins, Pen Friends, and Law Suits

Posted in On the Intertron, Photography, Randomness, The Law by Will on September 23, 2007.

Delicate Genius points out the recent Sydney Morning Herald article about Virgin Mobile Australia being sued for using Alison Chang’s picture in their advertising campaign.

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Another girl who’s likeness was used in the Virgin Mobile campaign. Credit: Jason Meredith
“It’s fine to text about someone, just don’t send it to them by mistake” says Virgin Mobile.

Some quick facts, for those of you who aren’t aware of the background on this:

  • Virgin Mobile Australia ran an ad campaign called “Are you with us or what?” earlier this year.
  • The ads used pictures which were obtained from Flickr - a photo sharing service.
  • The photographers who posted the photos on Flickr marked them with a Creative Commons licence of some variety - although apparently not all of them allowed commercial usage.
  • Model releases were not obtained by Virgin Mobile/Advertising Company/Photographer - Which is required for commercial use (with some disclaimers) , but not non-commercial use (such as posting to Flickr)
  • Neither Virgin Mobile nor their Advertising/Marketing agency contacted the photographers to let them know their photos would be used.
  •  Some of the pictures were not exactly flattering, and the captions (added by Virgin Mobile) could possibly be offensive to those pictured.

I find it interesting the viewpoints of some of the people commenting about this.

With the exception of someone shooting with the intent to use pictures commercially; I don’t believe it should be the responsibility of the photographer to obtain model releases for all those featured in a shot.  Many apparently disagree with me, for example the first comment by ‘wjkocik’ on this photo 

There’s also some confusion about the role of the Creative Commons folks in this. The Sydney Morning Herald says “Creative Commons Corp, [is] a Massachusetts nonprofit that licenses sharing of Flickr photos”.  The Creative Commons folk simply provide a way for people to use a pre-prepared licence for their works which clearly states what the work can be used for.

I’ll be watching the lawsuit to see what happens.