21 September 2007

Warning to Business: Read the Fine Print on CC Licenses

Today's Star has a story about a lawsuit launched by a Texas family against Virgin Mobile Australia, for their use of a photo of their daughter in a billboard advertising campaign. The photo in question was taken by the girl's friend, and uploaded to Flickr under a Creative Commons Attribution licence. Essentially, this licence says that anyone may use the otherwise copyrighted work for any purpose, so long as they give attribution to the photographer, provide a link back to the original source of the photograph and to the licence itself. There are other, more restrictive Creative Commons licenses, including those that specify no commercial use, no derivative works, and a requirement for sharing any derivative works under the same license as the original work.

The family's lawsuit expresses many of their concerns, including an odd one (although we should remember that this is Texas): the tag line on the ad reads, "Free text virgin to virgin." The family claims that this line, "damaged Alison's reputation and exposed her to ridicule from her peers and scrutiny from people who can now Google her." I can't really see what's wrong with declaring that this 16-year-old is a virgin, unless she is attempting to establish a reputation as something else.

But that is not really the point of the conversation around the 'net on this issue. Creative Commons Australia weighs in with their opinion on the legality of the usage. They suggest that Virgin Mobile violated the Attribution licence by not providing appropriate link-backs. Much of the conversation suggests that a model release would be required (although technically speaking, not under Australian law), and that the photographer's moral rights in his work have been violated by the inclusion of the tagline (although technically speaking, moral rights only exist under British Commonwealth jurisprudence, so yes in Australia, no in the U.S.). They also point out that other images in the same campaign are clearly licensed under an Attribution-NonCommercial-ShareAlike licence (like this weblog), so Virgin is clearly in violation in those cases.

The message to businesses is clear: CC doesn't mean free-for-all. It means that you have to follow the rules of the licence, even though those rules are less restrictive than normal copyright. As well, when it comes to identifiable use of individuals in advertising, or other commercial uses, it's a good idea to get a model release. CC refers to the copyright in the photograph. It is the responsibility of the final user to ensure that they comply with all the other legal requirements for their specific use (most of which could not possibly be anticipated by the casual photographer at the time). And, just because you're in Australia, doesn't mean that your violations won't get noticed elsewhere in a UCaPP world.

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