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Copyright vs. Publicity Rights and the Creative Commons

September 29th, 2007

Take a look at this photo page [flickr.com] on Flickr. The photos shows an image of an outdoor ad on a bus stop in Australia by Virgin Mobile with the phrases “dump you pen friend” (or pen pal) and “free text virgin to virgin.” In the bottom corner of the ad is an attribution to the photographer and the location of the original photo used in the ad from Flickr.

Now take a look at the comments.

The first comment is “hey that’s me! no joke. i think i’m being insulted…can you tell me where this was taken.” Posted by the girl in the photo. Let’s ignore the “i’m being insulted” as I’m hard pressed to imagine how anyone would be insulted by the photo or it’s tag line — displeased that their photo was being used in an advertisement I can understand but being insulted? That make me doubt my faith that people are generally good hearted and intelligent. How much of an uptight Christian with serious problems talking about sex or anything to do with sex do you have to be to find “free text virgin to virgin” insulting? It’s and ad for ‘Virgin’ mobile!

The second comment is by the photographer. He wants to know if Virgin will give him free stuff.

So in the first two comments, by the subject of the photos (let’s give her the benefit of the doubt and call her the model since it is being use in an advertisement) and the photographer we have some lovely feelings on display: Embarrassment and anger on the part of the model and greed on the part of the photographer.

If you read the rest of the comments you will run across the models brother displaying anger and a lot of concerned Flickr users pointing out the basics of copyright. Finally after quite a number of comments you will come across the real item of interest: the lawsuit.

The model and her family and the photographer are suing. Suing Virgin Australia, Virgin’s US operation and Creative Commons — the authors of the license (selected by the photographer!). Read the FAQ written by Creative Commons on their blog here [creativecommons.org] and a post by Lawrence Lessig, the CEO if Creative Commons, on his site here [lessig.org]. (There is also a longer discussion on Flickr, here [flickr.com].

The lawsuit against the Virgin companies does not bother me much, in fact, almost not at all. If Virgin, a company that deals with models for ad campaigns on a regular basis did not check the terms of the license regarding publicity rights then it’s their own stupidity and they should be liable. It is noted in the FAQ on the Creative Commons site that the license only deals with ‘Copyright’ and not at all with ‘Publicity Rights.’ And I cannot imagine a lawyer signing off on this type of thing without readying the terms and details of the license, and I find it even harder to believe that there were no lawyer involved with an ad campaign by a big company.

The fact that Creative Commons is being named as a defendant and the photographer a plaintiff really bothers me. From what I can read on the suit the complaint charges that Creative Commons did not properly educate the photographer on the terms of the license.

This complaint against the Creative Commons is, like too many complaints filed in the US, just pain silly. It shows either a disgusting greed, overwhelming stupidity or a disturbing lack of personal responsibility on the part of the photographer.

Since by default photos posted by user on Flickr are under the default ‘all rights reserved’ traditional copyright license and the photographer would have to manually choose to license his photos under a Creative Commons license I suspect that the photographer just does not want to own up to having made that choice. He, like too many other people in the world, suffers from the great malady of the times: a lack of personal responsibility. He seems to thank that it is the responsibility of Creative Commons to that this happened. But he choose the license! Flickr explains, in clear English the details of the license and provides a link to the Creative Commons site that further explains the terms.

I think the complaint against the Creative Commons grows out of the second comment on the photo page, the first comment by the photographer; “where was this? do you think virgin mobile will give me stuff?” Such a sad world we live in. I guess since he is not getting paid he is lashing out at everyone. Why isn’t he suing Flickr and Yahoo!?

Since all my public photos on Flickr are released under the Creative Commons Attribution License, I will have to follow the court case. I take a lot of photos on people and the outcome of the case could affect the license I use for photos where people are the main subject.

I believe I understand the terms of the license I have chosen. I even set the content of this website under a Creative Commons Attribution license (here [confusion.cc] and the ‘CC’ button at the bottom of the page.)

I truly hope the complaint against the Creative Commons is dismissed outright and I hope the photographer learns to take some responsibility for his actions and choices rather then continuing to blame others.

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