There has been quite a bit of chatter on the internet recently about Virgin Mobile's use of a picture of Dallas teen Allison Chang in its advertising campaign in Australia. Briefly, Allison's youth counsellor Chewy Wong took a photo of her, which he then posted on Flickr using a Creative Commons Attribution license. This license allows others to copy and use the photograph in any way so long as they attribute the photo to Chewy. Virgin did so, and that's when the trouble started.
Mark Goldberg characterizes it as a cautionary tale about privacy on social networks, which it certainly is. The issue, however, is much more complex than simply privacy. It's also a licensing and legal issue.
- Virgin made a huge error when it used the photo without obtaining a model release. Flickr isn't a commercial stock photo site, but rather a site for amateurs to share their photos. It's unlikely that anyone on Flickr routinely obtains model releases. Virgin should have known better.
- The subject, Ms. Chang, is a minor. No doubt this complicates Virgin's liability.
- The photographer naively put a Creative Commons Attribution license on all his photographs. This particular license all but releases the photograph to the public domain, allowing the photographer to retain very little control over its use. A much better license is the Creative Commons Attribution Non-Commercial, which allows others to privately share and enjoy the photographers works, but reserves commercialization rights. Had the photographer chosen this license, Virgin would have been required to contact him before using the photograph.
The CC Attribution Non-Commercial license is a fabulous tool for amateurs, incidentally. All of the content I produce — on Flickr, and on this blog — is licensed this way. Others may freely use my work, but I retain control of its commercial use. Occasionally I even earn some money from licensing a photograph or syndicating a post.
Two threads that are worth following:
- Dump your pen friend: the original flickr thread where Allison discovered that her photograph was being used without her knowledge.
- Virgin Mobile campaign using Flickr photos: a subsequent discussion group about the legality of the campaign.
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