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Wow. Just wow - Virgin to Virgin

I'm surprised that a corporation as massive as Virgin would use something as underhanded as this. ALWAYS cover your ass with marketing. Take more steps than you need to protect yourself. I thought this was common knowledge unless you were an unethical company.

Not so, evidentally. How many of you use Flickr? Have you seen this video on CNN where a girl had her picture taken at a church BBQ, and the person who took the photo posted it in his flickr account. Next thing you know, her photo is all over Australia in a major Virgin Australia ad with such tag lines as 'Free text Virgin to Virgin'. She had no knowledge of this use of her likeness. Flickr says, and is also noted in the small print of the Virgin ad, that images used were used under fair use policies.

I know that if we say or post anything on the net, we should expect it to be used, copied, quoted, anything since we no longer have control over it. In computer security it is always said that the only way to totally secure a computer is to never turn it on in the first place. That said, it just amazes me that a major corporation would use a photo someone found on the web without securing permission, especially since it is a MINOR in the image!


( 7 thoughts — Whatcha' think? )
Sep. 24th, 2007 09:12 pm (UTC)
and people just this weekend gave me flak because all of my pics from recent events are locked into friends-only galleries...
Sep. 24th, 2007 10:41 pm (UTC)
The issue is a bit more subtle.

When one posts to flickr.com, then the poster chooses what level of copyright enforcement is to apply. Virgin contends that the photo was posted with a Creative Commons license, by which the poster agreed that others could use the photo, but only by giving attribution to the photographer.

Had the photo been posted without a Creative Commons license, or with a license that permitted only non-commercial uses, then Virgin could not use the photo without express permission.

As it stood the photo was posted with a Creative commons attribution license, apparently. This is designed for anyone to use the photo, but they must give the photographer credit.

The issue here is that the photo was used inconsistently with the license, i.e., without giving the photographer credit.

I use Creative Commons licenses because I would welcome a use by a Virgin when I license BY.

But if someone wishes to post to flickr and not permit such a use, then the solution is to
not post it CC.

Yet the problem here is the allegation that Virgin chose to post CC work without attribution, which is wrong, because a BY CC license requires attribution to the photographer.

So I agree with you that Virgin and its ad agency should have been more careful, but it is a more nuanced debate than "use or not use" the photo.

Sep. 24th, 2007 10:48 pm (UTC)
But is CC the default? Also, do you have to 'read the fine print' to know that it is the default?

Also, can a minor legally put work out under a CC license or would the parents of the photographer have recourse? What about the photographer's due diligence to get a release from the subject to put something under a CC license?
Sep. 24th, 2007 10:56 pm (UTC)
I'd have to look at flickr, but the last time I checked, you have to choose cc. Copyright, all rights reserved is the default.

It's a different issue whether a minor's right of publicity is infringed, and that's a legal issue not well-suited to an internet post. But it's an issue that the lawyers involved would have to wrestle with.
Sep. 29th, 2007 02:08 am (UTC)
I know a bit more about this matter now than I did before, as the suit was filed in Dallas, as it turns out.

The key issue in the suit is the violation of the girl's right of publicity, although Creative Commons somehow got named on a negligence theory as well. It's an interesting thing, and it's sad to see the Creative Commons people dragged into it. But Virgin's ad agency should never have used the photo without a release from the model, speaking without meaning to give legal advice but just common sense.
Sep. 29th, 2007 04:23 am (UTC)
That's sort of the way I was looking at it. I may not be a lawyer, but I do work in a marketing department for a major corporation. I did have to take 'marketing law' for my role. You just don't take risks like that. We used to have to look at every advertisement and written communication for how it might be interpreted and look at every image or reference to another entity as something that must be called out specifically in the legal disclaimer or have a release on file.

It's bad marketing. That's why you use only purchased stock photos or make your OWN photos. You don't just grab at random.
Sep. 25th, 2007 07:20 pm (UTC)
A minor? That makes me want to stop putting my little one's pic on the net :(
( 7 thoughts — Whatcha' think? )