Use My Photo? Not Without Permission

abraxas · Oct 6, 2007

Thought this might be of interest;
http://www.nytimes.com/2007/10/01/technology/01link.html?_r=2&oref=slogin&oref=slogin

Here's the photo;
http://flickr.com/photos/sesh00/515961023/

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oldnavy170 · Oct 6, 2007

I am a member of Flickr and have known many people to have their photos taken. For some reason I still upload my photos but to be honest I hope it never happens to me. I guess I take that chance when I post my photos on the internet.

abraxas · Oct 6, 2007

From what I understand, the ad agency used the photo without obtaining a model release. The photo was shot and the photographer placed the photo online under 'creative commons' as -ok- to use commercially if credit is given.

From my POV, the photographer had no right to issue such a license and the ad agency had no right to use the shot without a copy of a signed model release.

Mesoam · Oct 6, 2007

to my knowledge most free online hosting goes something like once its posted it is open to public domain...B.S for sure but then again its free hosting...

once i get a site done all of my photobucket pictures will be removed

Sideburns · Oct 6, 2007

Mesoam said:
to my knowledge most free online hosting goes something like once its posted it is open to public domain...B.S for sure but then again its free hosting...

once i get a site done all of my photobucket pictures will be removed

Ya, but it's not the photographers rights to give away. Without a model release you can't use a recognizable person in an ad campaign.

craig · Oct 6, 2007

Fascinating case. It will certainly be interesting to see how this one plays out. The Susan Sontag excerpt really sums it up for me.

Pleassee! If anyone is serious about their images know and understand local and global copyright laws. Before posting!

Love & Bass

jedithebomber · Oct 6, 2007

Mesoam said:
to my knowledge most free online hosting goes something like once its posted it is open to public domain...B.S for sure but then again its free hosting...

once i get a site done all of my photobucket pictures will be removed

Sorry, but your wrong. In fact I cut this snippet out of the photobucket TOS.

Photobucket does not claim any ownership rights in any User Content that you choose to post to the Site. After posting User Content to the Site,you continue to retain all ownership or license rights in your User Content and you continue to have the right to use your User Content as you did prior to such posting. However, by posting or making User Content available through the Site or via the Services, you hereby grant to Photobucket a nonexclusive, royalty-free, transferable, worldwide license to use, copy, modify, prepare derivative works from, distribute, publicly display and publicly perform (whether by means of a digital audio transmission or otherwise) and process your User Content, or any part of it, solely on and through the Site and Services...

In fact there have been some legal issues in the past couple years weather someone can actually release something into the "public domain" outside of the standing copyright expirations. You do however give Photobucket or other site an unlimited license on you work. Flickr on the other hand has no such statements in their TOS and allow you to set your own license.

Getting back to the topic at hand. I believe the original photo was CC licenced as attribution only. Meaning the company that took the photo had every right to use it any way they wished as long as they attributed the original photographer. If the photographer did not have a model release it is my understanding that while he had ever right to post the photo, he could not grant any sort of license on the work. Although I am fuzzy on the whole taking pictures of people in public thing.

Garbz · Oct 6, 2007

The ad agency is not in the wrong. If it's under creative commons it's open to use. (depends on which version but i'm sure they looked at that) The photographer had no right to put a creative commons licence which allows commercial use (and yes there are others) without a model release. It's the same as stock images. A company doesn't need a model release to use a stock photo, but the photographer needs it before it gets uploaded.

This is my logical interpretation, no idea how this pans legally.

castrol · Oct 7, 2007

I don't get it.

Virgin Mobile. They are NOT a little mom and pop operation.

1. Why do they feel the need to use a photo found on the internet?
2. Why do things like this even get this far? Hey little girl... how about we
give you $5,000.00 for letting us keep our billboard with your picture on it?
No? Okay, $10,000.00.

The advertising alone is worth way more than that.

Garbz · Oct 7, 2007

1. It's not a spectacular picture but if it is what they wanted then they should go for it. Why set up a dedicated and fake shoot to get exactly the same and possibly a worse result.

Battou · Oct 7, 2007

I do not believe a model release is necessary in a public photography giving the Photographer free rein over the use of the photo.

I could be wrong but, Unless Virgin Mobile arranged this shot and/or the shot was taken with the intent to sell to Virgin Mobile or if the Photographer Informed the subject and neglected to state anything about model release forms, there is no fault or leagle violation.

But Like I said I could be wrong.

danalec99 · Oct 7, 2007

For web, use low rez images at all times.

MACollum · Oct 7, 2007

From what I understand, the liability lies with the person who published (Virgin Australia) without securing a model release. I think the court would probably hold the publisher much more liable than the photographer, though because he licensed it for commercal use with attribution only, he could be held partially liable because HE didn't secure a model release. This would apply in the US, I think.

I wish I could remember the site on which I found the information...

Garbz · Oct 7, 2007

How can their be liability to someone who published a picture which was licenced under creative commons. Technically wouldn't the "publisher" then be the person who opened the picture up under that licence.

I still don't see how in any country virgin could be held liable for using a picture which was for all intesive purposes free to use commercially according to the licence with which they found it.

Battou I believe you are mostly right about this however commercial use brings a whole new set of restrictions. For instance under australian law with which I am pretty familiar, I can take a picture of anyone in public providing they don't expect a reasonable amount of privacy, i.e they are standing in a public place where anyone could see them talk to them etc. I can use this picture for any non-commercial purpose providing it is not derogatory to the person, and the person is not identified by name.

If a person is identified by name or is used for commercial purposes, where commercial purposes is defined as endorsing a product say for instance I slap a virgin tag on the bottom, then I need a model release for every subject in the photo regardless of how or where it was taken.

Now this gets even more interesting because it's international, and it'll be interesting to see who's rules apply, but as far as I can see it is the photographer who needed to secure a model release before he applied the creative commons licence allowing commercial use. As soon as the licence is applied it can be reasonably expected (like in stock photography) that the picture will be used commercially to endorse a product, and any company should be able to use the picture under the assumption that correct releases have been obtained by the original publisher, the photographer.

As much as I hate to side by the big corporations, I don't see how this is anyone's fault except the photographer why blindly applied a licence to a photo without securing the correct paperwork from his subject to do so. That's the australian perspective anyway. I have no idea what will happen under american law since it has been proven time and time again that the american legal system is more a case of flipping a coin rather than sane legal process.

table1349 · Oct 7, 2007

Garbz said:
How can their be liability to someone who published a picture which was licenced under creative commons. Technically wouldn't the "publisher" then be the person who opened the picture up under that licence.

I still don't see how in any country virgin could be held liable for using a picture which was for all intesive purposes free to use commercially according to the licence with which they found it.

Battou I believe you are mostly right about this however commercial use brings a whole new set of restrictions. For instance under australian law with which I am pretty familiar, I can take a picture of anyone in public providing they don't expect a reasonable amount of privacy, i.e they are standing in a public place where anyone could see them talk to them etc. I can use this picture for any non-commercial purpose providing it is not derogatory to the person, and the person is not identified by name.

If a person is identified by name or is used for commercial purposes, where commercial purposes is defined as endorsing a product say for instance I slap a virgin tag on the bottom, then I need a model release for every subject in the photo regardless of how or where it was taken.

Now this gets even more interesting because it's international, and it'll be interesting to see who's rules apply, but as far as I can see it is the photographer who needed to secure a model release before he applied the creative commons licence allowing commercial use. As soon as the licence is applied it can be reasonably expected (like in stock photography) that the picture will be used commercially to endorse a product, and any company should be able to use the picture under the assumption that correct releases have been obtained by the original publisher, the photographer.

As much as I hate to side by the big corporations, I don't see how this is anyone's fault except the photographer why blindly applied a licence to a photo without securing the correct paperwork from his subject to do so. That's the australian perspective anyway. I have no idea what will happen under american law since it has been proven time and time again that the american legal system is more a case of flipping a coin rather than sane legal process.

Garbz,

I understand where you are coming from on this one but I can see how the corporation using the photo can be held responsible as well. You basicly said it in your post above. (I high lighted it in red) That is exactly what the corporation should have secured a copy of from the photographer prior to their using the photo. To fail to do so was negligent on their part.

Not much different than you walking into a shop that sells firearms in
Australia and having someone behind the counter tell you that you really don't need a Permit To Acquire. When you get caught with that gun you went ahead and bought with out that Permit To Acquiredo you really think that nothing will happen?

I do think that this will be one of those interesting court cases. Clearly at least in my mind the Photographer should bear the majority of the blame for the incident.