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Friday, September 21, 2007


Virgin Australia and Creative Commons Named in Lawsuit

Readers might recall the Virgin Mobile Australia and Creative Commons licensing controversy I blogged about here and here. Basically, Virgin Mobile Australia launched an ad campaign titled 'are you with us or what' which used Creative Commons licensed images available on Flickr. Red flags were raised because Virgin had added comments to the images that some considered derogatory. Further, issues such as the lack of a signed model release form, privacy, moral rights and whether the terms of the license have been satisfied were also raised.

As I have stated in a previous post:
"I think it is essential to reiterate that there are multiple legal issues at play and it is important not to get them confused. While I spoke about issues regarding attribution requirements under the license in my previous post, it is important not to mix this up with moral rights under the Copyright Act (which applies in Australia and are explicitly referenced in the Australian Creative Commons licences, but not in other jurisdictions like the US and the US Creative Commons licenses). Further, moral rights, and terms under the license apply in relation to the copyright owner/licensor- which in many cases is the photographer rather than the individuals in the photographs.

In some respects their advertising campaign is a very interesting use of Creative Commons licensed materials, providing some nice publicity for the photographers who have chosen to add an open license to their material which permits commercial use. However, it is also important for Virgin to read the terms of the license closely and fulfil their obligations under other areas of law."
Very useful information can also be found in this post by Jessica Coates.

According to SMH the family of Alison Chang (a young girl in one the images used by Virgin Australia - with the slogan 'dump your pen friend') has named "Virgin Mobile USA LLC, its Australian counterpart, and Creative Commons Corp" as defendants. Apparently Chang's family have accused Virgin of failing to credit the photographer by name and also accuses the companies of libel and invasion of privacy. Chang's family and the photographer, Justin Ho-Wee Wong, are seeking damages.

As Jessica points out in her post mentioned above:
"...some commentators have suggested that the failure to deal with the issue of model clearances represents a flaw in the CC licences. However, the licences make it very clear that they merely provide copyright permissions, and that they do not purport to deal with any other area of law. Due to the vast number of laws that can come into play when a person is using a copyright work (eg defamation, privacy, competition) it would be impossible for the licences, or the person issuing the licence for that matter, to definitively cover all potential legal issues in placing it releasing it for general use. There is arguably an onus on the person making use of the work to identify any laws their particular use might breach, and to make an effort to obtain any additional permissions that are needed - particularly if their use is large-scale and commercial."
I am not quite sure what will become of all this especially because of the array of laws and different jurisdictions in play. I am actually quite stunned that it has gone this far. It will be interesting to discover in what legal context Creative Commons was named as a defendant in this lawsuit. It is possible that this relates to Creative Commons licenses not dealing with the myriad of legal issues that could be relevant- if this is the case I can't see how this suit will be successful against Creative Commons (for the reasons Jessica points out above).

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Anonymous Anonymous said:
The lawsuit, filed in state district court in Dallas, names Virgin Mobile USA LLC, its Australian counterpart, and Creative Commons Corp., as defendants.

The family accused the companies of libel and invasion of Chang’s privacy. It is alleged that Virgin Mobile failed to credit by name the photographer who took the photo. The suit seeks unspecified damages for Chang and the photographer, Justin Ho-Wee Wong.

The complaint says the advertisement caused Alison "to experience and suffer humiliation, severe embarrassment, frustration, grief and general mental anguish damages, all of which, in reasonable probability, will subsist in the future.

"Furthermore," it continues, "Alison has sustained damage and injury to her reputation and good name in the community, which exposes her to contempt and ridicule among her peers, neighbors, relatives and friends, and impairs, among other things, her ability to gain acceptance to the universities of her choice."
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