September 22, 2007  ·  Lessig

Slashdot has an entry about a lawsuit filed this week by parents of a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The photograph was taken by an adult. He posted it to Flickr under a CC-Attribution license. The parents of the minor are complaining that Virgin violated their daughter’s right to privacy (by using a photograph of her for commercial purposes without her or her parents permission). The photographer is also a plaintiff. He is complaining that Creative Commons failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.” (Count V of the complaint).

The comments on the Slashdot thread are very balanced and largely accurate. (The story itself is a bit misleading, as the photographer also complains that Virgin did not give him attribution, thereby violating the CC license). As comment after comment rightly notes, CC licenses have not (yet) tried to deal with the complexity of any right of privacy. The failure of Virgin to get a release before commercially exploiting the photograph thus triggers the question of whether the minor’s right to privacy has been violated.

I’m not allowed to comment just now about the merits of the lawsuit. So I won’t. But I did want to comment about some obvious, and not so obvious points triggered by the suit.

First, and obviously, CC has worked, and will continue to work, to find ways to make the meaning of our licenses clear. Our aim is to provide licenses that do what the copyright holder wants. If the licenses are not clear, then we can’t achieve our aim.

Second, our desire to make our licenses clear far exceeds any obligation that may be imposed by the law. We’ve tried to make copyright simpler than Congress did (at least for the vast majority of those now regulated by copyright) (See, for example, the efforts we’ve taken to simplify the right of a copyright holder to terminate a transfer of his rights.) So too do we try to make the meaning of our licenses simpler than any standard that might be required by the law.

But third, this case does demonstrate that there is work to be done beyond the scope of what CC has tried to do so far. The CC licenses, for example, don’t purport to deal with rights of privacy. We’ve already begun to think about whether we should because of an iCommons node, or project, our chairman, Joi Ito, wants to launch called the “freesouls” project. Joi’s aim is to produce high quality images of interesting people, licensed under a CC-BY license. He certainly recognizes that means commercial entities (like Virgin) can use his photographs. But without a “model release,” such use is not simple. Making it simpler — for those who want to enable that simple use, both photographer and subject — is the objective of Joi’s project. Simpler either by a general release, or a simple mechanism to secure particular permissions. Again, the CC-BY license solves the permissions problem for all copyrights. But it does not solve the permissions problem for a publicity right, or a right of privacy.

Finally, 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 noncommercial use, subject (at least sometimes) to a copyleft requirement. My view is that if authors so choose, then more power to them.

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 finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes “commercial use”), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community.

The Noncommercial license tries to match these expectations. It tries to authorize sharing and reuse — not within a commercial economy, but within a sharing economy. It tries to do so in a way that wouldn’t trigger at least most non-copyright rights (though again, most is not all — a CC BY-NC licensed photograph by a voyeur still violates rights of privacy, for example). And it tries to do so in a way that protects the copyright owner against presumptions about the waiver of his rights suggested by posting a work freely.

Stay tuned for more as it develops.

  • Brian Hurt

    I’m not sure CC needs to deal in privacy. IANAL, so take this with a grain of salt, but it seems to me that if you don’t want information about you being published, maybe you shouldn’t publish it. And you can violate my privacy without distributing information- if you take a photo of me in the shower without my consent, you’ve violated my privacy, even if you never distribute the photo.

    Now, wether a minor can own a copyright, and choose a license for it, is a good question- probably not, as a minor also can’t sign a contract.

  • Mark Murphy

    I’m not a Flickr user. My assumption is that, as part of uploading photos, they provide you with a license chooser akin to those tools found on the Creative Commons site. While I see the technology, in the form of APIs and the like, to dynamically load the roster of available licenses and build chooser-type tools, I can’t seem to find any sort of “best practices” for the end-user experience of choosing a license. The vast majority of Internet users never have an opportunity or need to choose a license, as either the license is chosen for them (e.g., eBay’s Terms of Use) or they don’t publish licensable material per se (e.g., voting in a “Am I Hot or Not” site). The licenses themselves are probably fine, but those of us who present license choices to people perhaps could use some help on that end.

    Just two cents’ worth from the proverbial peanut gallery…

  • http://sleepyhead.org Judson

    Mark, it’s more a permanent preference, and one you have to seek out. The default is normal copyright, and they don’t actually ask you ever. If you are looking for it in your user preferences you can find it, but only someone looking would do it.

  • http://www.melodiefabriek.nl/ Marco Raaphorst

    I found out that the copyright on the photo is changed to ‘all rights reserved’ now. Should be better if Flickr doesn’t allow people to do this, because that means trouble. It would be best if Flickr allows your license more ‘open’, for example switching from BY-NC to BY only, but being able to change it into ‘all rights reserved’ is asking for trouble.

  • http://hsivonen.iki.fi/ Henri Sivonen

    I have serious doubts about the NC license component being the right solution for situations like this. Considering making licenses clear, NC is famously the least understood and explained part of the CC licenses.

    If I read CC-by, I can see that there’s no model release there. If I read CC-by-nc, I don’t know what constitutes non-commercial use.

  • http://www.noimedia.org Claude Almansi

    Brian, it is true that CC doesn’t have to deal with privacy issues. But here, the model’s permission is at stake too. In France in particular, “droit à l’image” can take totally absurd proportions: a lady wanted to sue a newspaper because her poodle was in a picture they published (can’t remember if she lost the case or if it was never admitted). And “droit à l’image” is an odd fish connected to copyright.

    And then, in the discussions about many cases like this one in the cc-community mailing-list, but also in national CC lists (I subscribe to the Swiss one), what comes out is that some slogans like “It is that simple when you skip the intermediary” are misleading. Yep, it is or should be much simpler for the would-be user of a given CC’ed content, should he bother to read the license or at least the explanatory comics with the playmobile characters.

    But from the author’s perspective, choosing the right CC license isn’t “that simple”. Because it isn’t “that simple” to imagine possible future situation. Speaking from experience here, from having made and from knowing people who made wrong CC choices on flickr and elsewhere.- people fairly CC-literate: the problem was not our knowledge of CC, but our capacity to foresee future situations.

    And then, even if CC doesn’t have to deal with privacy issues, an author has to when he publishes something on the web. The problem is that now many people think that a CC license solves all issues of online publication. Of course this is a wrong idea and CC never said it was so. Nevertheless, some CC slogans like “iI is that simple when you skip the intermediary” have contributed to create this impression.

    CC doesn’t have to deal with these other issues – but what about a sentence reminding people of their existence in the page from which they choose the CC license?

    Apologies for the long comment – as Pascal said in one of his Provincial Letters: “Sorry, I don’t have time to write a shorter one.”

  • http://www.globallives.org David Evan Harris

    Thanks for the post, Larry. I think this speaks again to the need for a CCI-crafted general release form translated into all of the languages for which CC licenses have been ported. I would love to see this on the CCI legal day agenda for the Sapporo iSummit.

    I wrote this piece on the topic a few months back: “CC Not in a Theater Near You w/o Model Releases”

    http://www.icommons.org/articles/cc-not-in-a-theater-near-you-wo-model-releases

    I’m working on setting up a “node” on the iCommons site to deal with this issue, as it is something that the Global Lives Project would benefit greatly from, though I don’t think we are going to get very far without a lawyer getting on board to really push this further.

  • http://foto.inspiral.net Henri Laupmaa

    One thought.

    I think CC might provide links to good tutorial like istockphoto has for dealing with rights related to “model releases” et al. on photo & video — so authors can educate themselves to avoid such traps in future.

  • http://weeklymobilegoodies.blogspot.com/ 123fun

    Claude Almansi touches on a key issue here, which is that the license only covers the rights of the photographer to the photo. This seems like one of the cases where the rights of the photographer are not the rights at issue. At paid sporting events and museums (and in France, even in some public squares), there is often a claim of ownership over the rights of what is being photographed. It would be valuable to have a clear set of guidelines compiled somewhere about the limits of the CC licenses and fair use, as well as a solid definition of the cases in which images of people and/or events can be used commercially.

    I even encountered a case where a flickr user posted photographs taken and copyrighted by someone else under a CC-BY license. At least in this case the user was kind enough to reveal that it was not his work (perhaps the license was his default setting and he may not have realized he was giving away rights he did not own). But this also brings up another pitfall for users of CC-licensed material. What sort of diligence is required of someone who uses a CC-BY photo commercially to be sure that the license legitimately applies?

    Finally, Henri Sivonen brings up a good point about the need for a clear definition of commercial use. When does a blog become commercial? Is it when you put google ads on it? When you get your first check for $3 from google ads? When it makes enough that the IRS takes notice? Or maybe it’s when you create a LLC to handle your blog revenue?

  • http://angelhill.net Dmitri Fedortchenko

    You know, I am not sure, but the outcome of this suit could make it impossible for people to become accidentally famous.

    Think about it, thanks to CC and some crazy Australian model agency, this girl could have used this opportunity to do some real modeling or at least milk some royalties from Virgin (maybe they should be suing for not paying the girl, rather then some non-existent insult). I think they got a bad lawyer.

    I guess there could be something like “contact me if you make a boat-load of cash on this” in the CC-BY license ;)

  • http://archiv.twoday.net Klaus Graf

    Wikimedia projects like Wikimedia Commons have often to deal with such cases. German Wikipedia’s policy is that confusing copyright (which are free licenses like the GNU FDL are referring on) and other rights in pictures is a category mistake. These other rights are seen independent of the copyright and not included in the license.

    Privacy and personality rights are not the only problem.

    There are trademark problems when using a logo (3-D) which is not protected by copyright. A commercial use is possible if it doen’t violate the rights of the trademark owner. NYT or other commercial media can print the free-licensed picture of the logo illustrating an actual event.

    In a lot of countries there a legal rules concerning coat of arms (e.g. of government agencies).

    There are in some countries claims of the owner of the photographed property (and not to forget the different copyright laws regarding works on public places, in German “Panoramafreiheit”).

    A photographer can license a photo of a protected sculpture on a public place in the US with CC but, while the use is in Germany absolutely legal, in the US a third party is only allowed to use it according the “fair use”. Fair use is also possible for some cases of commercial use.

    There is also a problem concerning the protection of designs (e.g. German “Geschmacksmuster”). A German court has declined to accept the claim of a plaintiff which has buyed pictures of the famous German train “ICE” which is protected by a Geschmacksmuster. The buyer had to pay money to the railway company as rights owner. According to the court the picture seller was not obliged to sell phtoos which are free from rights in every form. The deal was seen only as copyright transfer.

    In German law the upload on the photo on Flickr won’t be legal (“right on the own picture”). The non-commercial option would be useless.

    Thus the best would be to put a disclaimer in the CC licenses that other rights (e.g. moral rights) are not concerned. Commons has a permission form at
    http://commons.wikimedia.org/wiki/Commons:Email_templates
    saying
    “I am aware that the free license only concerns copyright, and I reserve the option to take action against anyone who uses this work in a libelous way, or in violation of personality rights, trademark restrictions, etc.”

  • http://lachlan.rogers.name Lachlan

    I would like to know more specifics about the legislation that concerns photographs and privacy. It seems to me that gossip magazines which publish compromising pictures of celebrities must be doing so without obtaining a “model release”. Is there something different between these uses of “unauthorised” photographs and Virgin Mobile Australia’s use of the photo of Alison? Does the fact that she is a minor exacerbate the problem at all?

    I recall reading somewhere that it matters whether the photo was taken indoors or outdoors, but can’t find anything about this at all – does it actually make any difference?

  • http://budgetwebdesign.org/policy/insurance/index.php Rosie Williams

    There is a current Australian Law Reform commission review of Australian Privacy Law underway which in part, specifically requests feedback for situations such as are raised by this event:
    http://www.alrc.gov.au

    I will quote from two sections of the Australian Law Reform Commission Discussion Paper Overview document:

    “Children, young people and the internet
    Internet sites-including online social networking sites such as MySpace and Facebook-make it easy for personal information to be widely distributed, sometimes without the knowledge or consent of the individual. In the ALRC’s consultations with young people, levels of concern about these risks varied but there was not strong support for increased government regulation of these sites. The ALRC has, however, asked for feedback on whether there should be a ‘take down notice’ scheme for information published on such sites (see ‘Personal information published on the internet’, on page 15).

    The ALRC proposes greater efforts by the Office of the Privacy Commissioner, NetAlert and schooling authorities to educate children and young people about risks associated with the internet and strategies to protect privacy.”

    And;

    “Personal information published on the internet
    The internet creates greater opportunity for personal information to be published, sometimes anonymously.
    The ALRC is interested in feedback on whether there should be a ‘take down notice’ scheme that would require a website operator to remove information that may constitute an invasion of an individual’s privacy. This could be similar to-or an extension of-a scheme that currently operates for removal of prohibited content, based on decisions of the Classification Board.”

    While CC licences may not presently be seen to need to deal with privacy law, it may conceivably be something that is required in the future? Submissions to the ALRC review can be made online via their web site at http://www.alrc.gov.au/submissions/making.html

    Rosie Williams

  • http://davidgerard.co.uk/notes/ David Gerard

    We’ve added a note to the top of the Wikimedia Commons reuse FAQ that although an image may be pre-cleared with regards to copyright, it is unlikely to be cleared with regards to model release, personality rights, etc. unless noted as being such.

    (Any further clarification on said page is most welcomed!)

  • http://www.negativesoundinstitute.com gurdonark

    I am sorry to see CC named in this suit here in Dallas County. I hope that Creative Commons achieves a rapid dismissal of the negligence claim filed against it. Fortunately, as an attorney who practices here, I have confidence in our local courts to “get” this issue, and to rule that Creative Commons is in the right.

  • tacet

    “The Noncommercial license tries to match these expectations. It tries to authorize sharing and reuse — not within a commercial economy, but within a sharing economy.”

    As a musician, I have a problem with promoting the use of an NC license in a sharing economy context. The NC licenses are the only ones which don’t waive fees to Sound Exchange and/or similar agencies.

    The NC licenses support commercial entities/a commercial economy not a sharing economy as you suggest. Signed artists releasing music into CC seem to be using these licenses as a protection mechanism to ensure their CC-licensed tracks are never remixed for profit. Meanwhile, they can still claim fees for any radio-play/commercial use that occurs against the terms of the license(s).

    By comparison, for an unsigned artist, NC is a restrictive license. It allows for use on a few sites such as wikicommons or ccmixter that exist in a non-profit bubble. Radio-play/podcasts and/or any other advertising supported channel including an artist’s own website (if remixing an NC track) are commercial use and against the terms of the license. Also, if illegal play does occur the unsigned artists have no access to the mechanisms existent for compensation.

    I don’t imagine you mean to confine sharing or a sharing economy to such a limited scope of distribution channels. As it stands NC does not do what you purport and further work is needed on the licenses.

  • Shayne

    From my understanding the picture wasn’t released under the ‘non comercial’ option. Just plain CC. But I might be wrong. Also, changing the licence in lieu of an impending court case could be construed quite unfavorably by the court if the court decides that the litigant is trying to pull a swifty on the judge.

    By my reckoning, something like the CC isnt a copyright agreement, so much as its a licence. That is its not *specifically* about transfer of copy-right permissions, but more about a general agreement that you can use that photo (including whatever hats-off to the associated sections of legislation required). By that reckoning, that includes model release.

    Now, Virgin has acted under this presumption, and saying “whoops , I stuffed up, no model release” and asking for money would appear to disadvantage virgin and thus the model might well be estopped from cashing in on it, since Virgin appears to of acted in good faith.

    Honestly, I think the girls going to be eaten alive by the court, but I’m not a lawyer, so this is just a guess.

    Note: Since the photo was taken in a public place, and with the girls blessing put on the net, I suspect the privacy thing wont wash in an Australian court, if thats where the correct Jurisdiction is.

  • http://www.ecademy.com/user/nevilledaniels Neville A. Daniels

    Virgin need to revist copyright law and the laws of attribution which relate to articles, bit works, books, magazines, periodicals, websites etc for the written word and support of the written would by associated images (those used to depict or enhance a written description).

    Blaitent commercial advertising IS NOT COVERED by any such licence or standing permit.
    Niether in the UK or America.

    Virgin should note that bigger companys have lost this round.

    Regards

    Neville A Daniels

  • http://www.mifdesign.com Custom

    Interestin. The copyrights has been changed to ‘all rights reserved’ now. Don’t think it is good from Flickr’s side. So many troubles with such king of “licening”. Thanks.

  • http://www.issienogvrij.nl Bouwow

    well a picture of a kid used for commercial targets Ok, than financial compensation is logical…the same applies for mass distribution of the photo

    in other cases it is a greedy action which of course can only happen in the States

  • David Villa

    (Oh, kill the spam and the reposts, will you please? Starting from Jan. 22, 2008.)

    Is this lawsuit ongoing still? There’s a lot about it that surprises me. That Creative Commons is named in the suit is probably to everyone’s surprise. What obligation have they failed? The license clearly states:

    “Creative Commons is not a party to this License, and makes no warranty whatsoever in connection with the Work. Creative Commons will not be liable to You or any party on any legal theory for any damages whatsoever, including without limitation any general, special, incidental or consequential damages arising in connection to this license.”

    If these folks are crazy enough to go after Creative Commons, why not also the guy who shot and posted the photo? I mean, if he didn’t have the full rights to the photo, then it was deceptive of him to license it as such (although the warranties, disclaimers, limitations etc. should in theory protect him). But I wonder if the main issue is he doesn’t have any money and isn’t worth suing, in which case the girl’s parents might as well have him on their side.

    I’m also surprised to see that Flickr isn’t a defendant. This is not the first complaint I’ve heard that Flickr did not explain the purpose of those optional licenses. Most people don’t understand that they already own the copyright to their photos (IANAL and certainly the international scene is confusing) and some people thought the CC license was a sort of super-copyright instead of what it actually does in giving away rights in a way that ensures the rights can’t be sucked up by anyone else.

    Maybe it’s the similarity to the copyright symbol that has people confused? But honestly if I were Flickr I would add a clickbox making sure people at least said they had read the license, just to cover my behind, and also add a description of what copy-left and the whole free/open/sharing or whatever you want to call it movement entails, not in manifesto terms but in a way that people will at least not “accidentally” choose the wrong license.

    Anyways, Virgin really goofed, and I want to say too bad for them, but on the other hand it really sucks that this more or less kills the sharing of photos of people until Creative Commons does come up with a resolution to that complex thorn. Even if you release a photo you took of your own kids, does that signify consent to some model release? And I’m absolutely certain that I’ve seen the license misapplied, so really what are my obligations as a licensee?

    • http://www.facebook.com/profile.php?id=100003413295970 Ian

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