When I started my music podcast, I needed an apporpriate image for the podcast blog. I found an ideal image on Flickr accompanied by a Creative Commons attribution share-alike license. The image of an electric guitar neck now graces the JamJourney blog.
Scouring sites like Flickr, where amateur and professional photographers alike share their work, has become a standard means of finding just the right image. So it’s not particularly surprising that Virgin Mobile Australia took the same approach in its effort to find images to support a print-based advertising campaign. Among the images they found was one of 16-year-old Alison Chang, taken by a friend at a church event and posted to the friend’s Flickr account. Seeing the Creative Common license, Virtin Mobil’s marketers grabbed the image and splashed it all over bus stops with taglines like, “Dump your Pen Friend” and “Free Text Virgin to Virgin.”
Now, Chang and her family are suing Virgin Mobil and Creative Commons, not because Virgin failed to pay for the rights to Chang’s image, but because using the image is a violation of her privacy rights. (You can watch a CNN interview with the Chang’s attorney here.)
On its surface, the lawsuit is a cautionary tale for organizations who view Flickr as an archive of royalty-free images. Lawrence Lessig—the Stanford professor, Constitutional law attorney, and intellectual power behind Creative Commons—offers a deeper dive into the issue (although he is constrained from commenting on the merits of the suit). In a post to his blog, Lessig raises a number of points:
…this case does again highlight the free culture function of the Noncommercial term in the CC license. Many from the free software community would prefer culture be licensed as freely as free software—enabling both commercial and commercial use…But this case shows something about why that objective is not as simple as it seems. I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And fianlly, as the world is now, while many might resist the idea of Virgin using a photograph of theirs for free…most in the net community would be perfectly find with noncommercial use of a photograph by others within the net community.
The Noncommercial license tries to match these expectations. It tries to authorize and reuse—not within a commercial economy, but within a sharing economy.
I urge you to read Lessig’s entire post, where he points out that the Creative Commons has been effective and that the organization has taken pains to make the meanings of the various licenses easy to understand (easier, he points out, than Congress does with copyrights). The suit, however, shows CreativeCommons has some way yet to go. And the distinction between commercial and noncommercial licenses does not address permissions “for a puboicity right, or a right of privacy” (a point reiterated by Ryan Zhel, the Changs’ attorney, who says the suit is about privacy, not commercial vs. non-commercial distinctions).
We in the social media community embrace and extoll the virtues of Creative Commons licenses, but this lawsuit seems to show that they are not a panacea. It’ll probably be up to the courts, ultimately, to decide who has rights to your image once it escapes into the social media space, with or without your knowledge or consent.
Not surprisingly, there’s plenty of commentary on the story.
