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Cruel advert lands Creative Commons in the dock


What was the ad agency thinking of when it took a photo of a young woman from Flickr and, according to the New Tork Times altered it for an Australian Virgin Mobile campaign in the US? 

On the billboard, Alison’s friend has vanished and so has the Adidas logo on her hat. Her image is accompanied by a mocking slogan — according to the ad, Alison is the kind of loser “pen friend” (pen pal) whom subscribers will finally be able to “dump” when they get a cellphone.

Naturally it was via Flickr that news of the photo's use:

....it was a Flickr member from Adelaide, Brenton Cleeland, who first noticed the ad on Churchill Road and, naturally, photographed it to share on Flickr. In the spirit of a site populated with amateur photographers in search of an audience, Mr. Cleeland wanted to spread the news of Mr. Wong’s success. “I wonder if he knows that his photo is being used here,” he wrote in a posting, adding, “Anyway, congratulations!”

The photo was published under a Creative Commons attribution licence, it seems, so the agency was within its rights to use the image, but to insult the subject... seems cruel to say the least.

Bizarrely the suit also names Creative Commons for not defining the licence adequately.

Lawrence Lessig, the Stanford law professor who was served the papers on behalf of Creative Commons, said he was sympathetic to the Changs’ plight.

But, added that, “the part about us is puzzling. It says we failed to instruct the photographer adequately, but the first question is, ‘do you want to allow commercial uses?’”

Creative Commons on Flickr (and a alot of other things) is something I like a lot as a producer of content professionally and personally. It helps you to give things away without giving up all control. I've had a photo of mine used recently on a travel website - which I was thrilled about. On the MORE TH>N Living website we use people's pictures from Flickr with creative commons attribution licence all the time.  

The thing about this case is that there can be a downside to Creative Commons and one we should maybe think about carefully when putting the licence to one's own content. If someone were to use my image or that of a friend or member of my family in a way that I found distasteful or

That said, I think those responsible for this advert have been callous at best. Who appropriates a picture of a teenager and calls them a dork in front of thousands of people?

: : Discussion of the issue on Flickr in interesting if you want ot look into this issue further.

: : : If you support the Creative Commons cause please do make a donation to organisation.


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An interesting case. It seems Chang is suing for infringement of privacy. In the US, in addition to the right to privacy (including intrusion, appropriation, disclosure and false light), the majority view is that non celebrities have a right of publicity (right to recover for unauthorised commercial use) and libel. These rights are entirely separate from copyright –which is dealt with by the CC licence.

In the UK, there is no right of publicity or image right --- although the law of confidence may be used to control photos of private events eg. Douglas v Hello – where commercial confidence was held to protect photos of a celebrity wedding because express confidentiality had been imposed on all guests and the photos had commercial value.

There is also no right to privacy per se in the UK, however now Article 8 (right to private life) of the European Convention on Human Rights, forms part of domestic law. In Von Hannover v Germany, the ECHR found pictures of Princess Caroline of Monaco going about her private life in public were private. English law responded by recognizing a remedy for misuse of private information, e.g. Campbell v Mirror Group where photographs of Naomi Campbell leaving NA were private – as showing treatment for a condition affecting her health. The protection is only for matters that are private, sexual and intimate relationships, health, finances etc. So as the court said in Campbell, a photo of her popping out for a pint of milk is not private. This was confirmed in Murray v Express Newspapers which held that a photo of JK Rowling’s child in the street is not protected.

There is also some protection by moral rights for photographs commissioned for private and domestic purposes –e.g. a couple commissioning a wedding photographer has the right not to have the photos issued to the public, exhibited or broadcast and none of the fair dealing exceptions –such as reporting current events apply.

However, where the image is used for commercial purposes, as in the Chang case, English law may offer protection by the common law cause of action for passing-off. This is a relatively new development and only a handful of cases have succeeded in this area, most notably Irvine v Talk Sport where a photo of Irvine was doctored by replacing his mobile with a radio saying talksport. The essence of the claim is the misrepresentation that the individual endorses or is commercially connected with the brand. There can also be a libel claim in some cases (e.g. if the individual is an amateur sportsman or if it is otherwise false and pejorative).

There may also be a data protection claim for unfair processing and the self and co-regulatory codes also apply online and require written permissions –although without real sanction or remedy.

So in Chang’s case – if she had jurisdiction in the UK, she could also sue.

The real remedy though in all such matters is usually notice and takedown –which the law has developed to immunize internet intermediaries –who will remove all and any kind of content on notification of a purported claim. Purported is the operative word here as they are not required to decide on the viability or merits –but remove. If they do so, they are out of the frame for any damages.

In the EU, this applies to all content via the Ecommerce Directive, although the US version, the Digital Millennium Copyright Act, applies only to copyright works. This is perhaps why Chang has been forced to sue –unless of course she is after some revenue.
In the EU, unfortunately for free speech—the intermediaries will remove on demand –no questions asked. They have been incentivized to do so and rightly so in the sense that policy has been to encourage their developing business models rather than require them to be judge and jury in all content disputes.

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