Family Sues Over Unauthorized Use of Photos

Use My Photo? Not Without Permission – New York Times The New York Times is running a story on the plight of Alison Chang, a 15-year-old from Dallas, whose family is suing Virgin Mobile USA, over her unauthorized likeness in a Virgin Mobile advertising campaign.

The case seems pretty clear cut to me and Alison’s family will probably get a chunk of money over it. It’s pretty stupid that Virgin Mobile would use a photograph commercially without getting the rights cleared. I’m sure someone over there will probably lose their job over this.

The photo isn’t Alison’s by the way, it’s a Creative Commons licensed photo that was posted to Justin Ho-Wee Wong’s Flickr account. Which brings up an important point. Justin had his photo licensed Creative Commons but did not have a non-commercial designation on the license. When you license something Creative Commons with no additional designation pretty much anyone can use that photo. In this case Virgin still needed to clear the likeness issue with Chang but are probably within their rights in using Wong’s photo. Although there may be an issue with attribution even there.

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12 Comments

  1. Anonymous says:

    Thomas as a zooomr user I was wondering if you could update us on the licensing on zooomr. Right now we can’t designate our pictures as any certain license. Is that coming and what does zooomr consider our pictures to be licensed as right now?

    Thanks and thanks for all the work you and Kris do.

    -jeepersdad

  2. beebo says:

    The case seems pretty clear cut to me and Alison’s family will probably get a chunk of money over it. It’s pretty stupid that Virgin Mobile would use a photograph commercially without getting the rights cleared. I’m sure someone over there will probably lose their job over this.

    I believe that you are being a bit hyperbolic here. What has a Virgin employee done wrong? The photo was licensed CC by Justin Ho-Wee Wong. If anyone is in trouble, it would be Justin for not getting a model release, which makes me wonder if you get a model release for all of your the subjects in your photography that is CC. I do see to recall you stating you once sold a photo to a national hotel chain that had a female subject in the photo. Should someone at said national hotel chain lose a job over that if you, the photographer, did not provide a model release.

    Let’s get back to reality some, huh?

  3. julie says:

    I blogged about this the other day. I’m not a lawyer and I don’t play one on TV (though Alan Shore can sit on my patio and have a drink anytime), but it seems that Virgin should have sought a model release.

  4. Sean says:

    She’s ALSO suing Creative Commons.

    http://www.woai.com/news/state/story.aspx?content_id=6f0dadd3-378a-444c-8a6c-cffc49d64470&rss;=69

    Chang’s family filed a lawsuit late Wednesday in state district court in Dallas against Virgin Mobile USA LLC, its Australian counterpart, and Creative Commons Corp., a Massachusetts nonprofit that licenses sharing of Flickr photos.

    I don’t think it’s cool to sue CC as well.

  5. Todd says:

    There probably should have been a model release. This Chang person is also suing Creative Commons, which seems totally irrelevant.

    It seems that the Photographer (Wong) is suing, too. Because he didn’t read all the fine print of the license he was offering…it sounds more like he went through this thought process: “I’ll offer all my photos under a creative commons. No one’s going to use my photos, I’m an amateur. I’d be psyched if someone wanted to commercially use my photos.” Then someone used one of his photos and now, “where’s the money? I want my money.” It’ll be pretty easy to come up with a fair price to pay for the girl. I’m not sure Virigin should be totally at fault, maybe the photographer should have to share some of the damages? This way, it’s the photographer suing himself?

    Lesson learned: don’t assign away your rights while blindly applying a Creative Commons license to your images if you think one day you should be compensated for your image. The photographer should be flattered his image was used. The girl deserves some money for her face being used in a national ad-campaign. Both the photographer (Wong) and Virgin are liable for the license of her face…though since it’s Virgin with the money, I’m sure they’ll be fully culpable.
    Virgin should pay the girl her model wages and move on. Really, other than that, what damages are there? Does Wong really want in on a slice of the pie, too? (That’s lame.)

  6. A says:

    I would not necessarily bank on chang winning, as there was no model release. Being a keen law student I have been looking for the requirements for model releases in Australia, and it seems that you are allowed to take and publish photos of people, provided no defamation laws are relevant. ie that by displaying the picture you are not damaging the subject’s reputation. If the caption or use of the photo is seen to be defamatory then they would win, but having seen the ad, I think that it would be a pretty hard case to prove.

  7. I saw this last week when it was reported in the Australian papers. It looks like Virgin might get done on the non-existence of a model release form.

    However the whole thing raises the question on when and if you have any right (moral not legal) to upload a picture of some one else. Justin Ho-Wee Wong is some what to blame for all this, it is surprising that he is part of the suit.

    Also as a clarification to your post, this is taken from the times article:

    Virgin Mobile USA, in a statement, did not address the issues in the lawsuit but said that, as a “independent entity from Virgin Mobile Australia,” it had been “erroneously named” in the suit.

  8. Gary H says:

    It sounds like Virgin was within their rights to use the photo given the license. The photographer may have gotten consent to photograph the girl and post the image, but should have properly licensed it under CC or just said “this image is copyrighted”.

    Given that it is a CC licensed image, the photo was taken legally under Australian law, and Virgin has lots of money to pay lawyers, Virgin will likely prevail.

    And suing CC who is trying to help people is just lame.

  9. TranceMist says:

    Interesting story, thanks for pointing it out, Thomas.

  10. I don’t see it as all that clear cut at all Thomas.

    The photographer posted the photograph with a license that allowed commercial use.

    Isn’t it incumbent on the photographer to obtain model release forms? How is this different from a company buying a stock photo from one of the stock photo companies? The rights should already have been obtained, and the license the photograph was placed under (which is not the default Flickr license) would imply that the photographer had obtained the proper permissions.

    I see this as a name whomever has the most money type of lawsuit – Virgin Mobile might actually have a case against the photographer for posting the photograph under a license he did not have the right to use. I’ve got a nasty mind though.

  11. Miguel says:

    The license allows commercial use *with* attribution, I believe. Did Virgin Mobile attribute the photo?

    Suing CC is useless, like suing the government for a law you broke but didn’t know about. The FAQ on CC states the following:
    “This is a distinct and separate obligation from obtaining the copyright license, which only gives you a license from the author (or photographer) but not from the subjects. A Creative Commons license does not waive or otherwise affect the publicity rights of subjects.”

    The case will be worthwhile, though, as an educational process.