Mark Roberts wrote: > Adam Maas wrote: > >>> Virgin definitely deserves to get sued. But it sure looks like the >>> plaintiffs are exaggerating their "suffering" for monetary gain. I >>> notice that the photographer who put the photo on line and >>> licensed it for commercial use (without getting a model release) >>> is a co-PLAINTIFF, not a co-DEFENDANT! Amazing. He should be >>> sharing liability with Virgin. >> He's a friend of the family and is equally pissed off, > > Being pissed off does not excuse one from liability. :)
Technically, he's not liable. It's the publisher, not the photographer, who needs the release. As a practical matter, the photographer should have it just to be safe (and to guard against negligence suits), but the letter of the law references the Publisher, which in this case would be Virgin Mobile and/or its ad agency. > >> his real mistake was in not reading the fine print between the >> different licenses (He actually thought he'd picked the >> non-commercial license apparently). > > Agreed. But that just underscores the fact that *he's* the one > primarily liable for this fiasco. Nope, other way 'round. Publisher is primarily liable. See: http://www.danheller.com/model-release-primer.html Dan Heller is an expert on Photography Business issues. > >>From a "letter of the law" standpoint, Virgin is entirely in the right: > The photographer offered the photo for commercial use and it's > technically up to him to insure all formalities of model release are > taken care of. OTOH, every publication I've freelanced for has made me > state in writing that I've secured all necessary model releases -- even > for journalistic articles that technically shouldn't need them. So > common sense (the legal term is "the reasonable, prudent person") would > dictate that Virgin should have asked themselves "have all these people > posting photos for commercial use on Flickr *really* secured the > appropriate releases?" before going ahead. No, Virgin may think it is correct, but they are the ones who needed the release, not the photographer, under US Law. At worst the Photographer is liable to the family for negligently selecting licensing terms. > > The law course I took in grad school only covered U.S. law, so I don't > have any idea what Australian courts will make of it. (Assuming the > truly frivolous parts of the suit, against Virgin USA and Creative > Commons, get axed.) At the very least, they'll sue the photographer. They may try, but the photographer's liability is extremely limited, while Virgin Mobile AU is on the hook for the hole deal. -Adam -- PDML Pentax-Discuss Mail List [email protected] http://pdml.net/mailman/listinfo/pdml_pdml.net
