[videoblogging] Re: Creative Commons and Virgin being sued for photo use
--- In videoblogging@yahoogroups.com, Rupert [EMAIL PROTECTED] wrote: Apologies if this has been discussed already while I was away - I searched, but didn't find it. This is a very interesting situation, Rupert. Thanks for bringing it up. :) Virgin Mobile has used CC licensed photos from Flickr in a billboard campaign in Australia. They used a photo of a girl under the slogan Dump your Pen Pal The girl, who lives in Texas, feels like she's being insulted Yeah, well, this is one of the problems with advertising. Ads are filled with MODELS... And not necessarily models that have anything to do with the product. When you see some guy that's 52 years old, and he keeps himself in shape with bowflex, you have to wonder how long he's been using bowflex and when it was even invented. You can't take the advertiser's word that the person they're showing used the product in the way they claim. Similarly, the people smiling and skipping down the street together holding hands in the Herpes Simplex-2 commercials don't necessarily HAVE herpes. They have been chosen for that ad campaign, and as actors, have agreed to be spokespeople for this Herpes medicine or whatever. There is NO WAY that the pharmaceutical industry restricts their casting calls specifically to people WITH herpes and that have ever used Valtrex, for example. This is why they thought it was cool to use a picture of some girl that was most likely NEVER anyone's pen pal and especially *NEVER* dumped by a pen pal in her entire life. Again, there is NO WAY advertising agencies are going to restrict their search for pictures specifically to people that have been dumped by pen pals for thier dump your pen pal campaign. - it was a photo taken by a friend, and neither the friend nor she were told by Virgin Media that they were using it. I bet Virgin thought that because they were using it in Australia, she'd never find out. But of course, a photo of the billboard was posted on Flickr. DUH! Her family are now suing Virgin and Creative Commons. Virgin say they had a right to use it, and no obligation to tell anybody, because it was licensed under just an Attribution license - so all they had to do was put his flickr id in the bottom left of the billboard. I agree with Andreas that it looks like Virgin's in the clear here as far as the CC license is concerned. http://creativecommons.org/about/licenses/ states Attribution. You let others copy, distribute, display, and perform your copyrighted work and derivative works based upon it but only if they give credit the way you request. So, if he poster didn't specify HOW he wants to be credited, that seems to be all they're required to do. The general consensus in discussions seems to be that Virgin CC will lose, because under Australian and US law, the CC license is outweighed by the fact that Virgin didn't obtain a model release. That makes a lot of sense. The FIRST reason that makes sense is that the girl in the picture (according to the discussion @ http://tinyurl.com/2adx67) didn't have any say in what license the poster used. That means that he wasn't authorized to hand over her likeness to Virgin to begin with. Not only did they plaster DUMP YOUR PEN FRIEND practically on top of her face, they flipped the picture horizontally. You can see the picture as it was taken in the discussion thread. The girl to her left is actually on her right, and she's wearing a shirt that says Old Navy on it, so you can tell which way is the right way. This means she wasn't doing the peace sign with her left hand, she was doing it with her right hand. How does Virgin know that that's ok with her? They don't, because they didn't ask her. In some circles, shaking hands with someone with your left hand is a sign of disrespect. I know that sounds retarded, but it's a fact. If someone were to have a picure flipped so it looked like they were shaking hands with someone lefty and that picture was plastered all over billboards, there could be a problem. Interesting that they are also suing Creative Commons. And it has echoes of all our previous discussions on Creative Commons here, and implications for all of us who include random people in our CC licensed videos. If you wonder how this is relevant to you - imaging you shoot a video of a stranger in passing - at a carnival, say, wearing a wacky costume - and some huge multinational uses that image or footage to use in an advertising campaign which pokes fun at the stranger. Suddenly you're in the middle of a shitbag salad. Yeah, that's very interesting. However, that could happen in a non-commercial setting as well. Very interesting. I would suggest always including non-commercial in your CC license, unless you've got very good reason not to. Link to photo with discussion: http://tinyurl.com/2adx67 Flickr Central discussion http://tinyurl.com/2ue9fw
Re: [videoblogging] Re: Creative Commons and Virgin being sued for photo use
The fact that CC was included in the suit will legally solidify CC's place, what it means, and bring it media attention. All good except for the fact that the CC will have attorneys' fees out the wazoo. Perhaps the resulting PR will be worth it if the case receives media attention. Jan On 9/24/07, Bill Cammack [EMAIL PROTECTED] wrote: --- In videoblogging@yahoogroups.com, Rupert [EMAIL PROTECTED] wrote: Apologies if this has been discussed already while I was away - I searched, but didn't find it. This is a very interesting situation, Rupert. Thanks for bringing it up. :) Virgin Mobile has used CC licensed photos from Flickr in a billboard campaign in Australia. They used a photo of a girl under the slogan Dump your Pen Pal The girl, who lives in Texas, feels like she's being insulted Yeah, well, this is one of the problems with advertising. Ads are filled with MODELS... And not necessarily models that have anything to do with the product. When you see some guy that's 52 years old, and he keeps himself in shape with bowflex, you have to wonder how long he's been using bowflex and when it was even invented. You can't take the advertiser's word that the person they're showing used the product in the way they claim. Similarly, the people smiling and skipping down the street together holding hands in the Herpes Simplex-2 commercials don't necessarily HAVE herpes. They have been chosen for that ad campaign, and as actors, have agreed to be spokespeople for this Herpes medicine or whatever. There is NO WAY that the pharmaceutical industry restricts their casting calls specifically to people WITH herpes and that have ever used Valtrex, for example. This is why they thought it was cool to use a picture of some girl that was most likely NEVER anyone's pen pal and especially *NEVER* dumped by a pen pal in her entire life. Again, there is NO WAY advertising agencies are going to restrict their search for pictures specifically to people that have been dumped by pen pals for thier dump your pen pal campaign. - it was a photo taken by a friend, and neither the friend nor she were told by Virgin Media that they were using it. I bet Virgin thought that because they were using it in Australia, she'd never find out. But of course, a photo of the billboard was posted on Flickr. DUH! Her family are now suing Virgin and Creative Commons. Virgin say they had a right to use it, and no obligation to tell anybody, because it was licensed under just an Attribution license - so all they had to do was put his flickr id in the bottom left of the billboard. I agree with Andreas that it looks like Virgin's in the clear here as far as the CC license is concerned. http://creativecommons.org/about/licenses/ states Attribution. You let others copy, distribute, display, and perform your copyrighted work and derivative works based upon it but only if they give credit the way you request. So, if he poster didn't specify HOW he wants to be credited, that seems to be all they're required to do. The general consensus in discussions seems to be that Virgin CC will lose, because under Australian and US law, the CC license is outweighed by the fact that Virgin didn't obtain a model release. That makes a lot of sense. The FIRST reason that makes sense is that the girl in the picture (according to the discussion @ http://tinyurl.com/2adx67) didn't have any say in what license the poster used. That means that he wasn't authorized to hand over her likeness to Virgin to begin with. Not only did they plaster DUMP YOUR PEN FRIEND practically on top of her face, they flipped the picture horizontally. You can see the picture as it was taken in the discussion thread. The girl to her left is actually on her right, and she's wearing a shirt that says Old Navy on it, so you can tell which way is the right way. This means she wasn't doing the peace sign with her left hand, she was doing it with her right hand. How does Virgin know that that's ok with her? They don't, because they didn't ask her. In some circles, shaking hands with someone with your left hand is a sign of disrespect. I know that sounds retarded, but it's a fact. If someone were to have a picure flipped so it looked like they were shaking hands with someone lefty and that picture was plastered all over billboards, there could be a problem. Interesting that they are also suing Creative Commons. And it has echoes of all our previous discussions on Creative Commons here, and implications for all of us who include random people in our CC licensed videos. If you wonder how this is relevant to you - imaging you shoot a video of a stranger in passing - at a carnival, say, wearing a wacky costume - and some huge multinational uses that image or footage to use in an advertising campaign which pokes fun at the stranger. Suddenly you're in the middle of
[videoblogging] Re: Creative Commons and Virgin being sued for photo use
I read on a legal forum that a person in public can have no expectation of privacy and that, therefore, you can take images of them. Cartier-Bresson photographs and your videoblog with random incidental people walking by, therefore, are permissible. --- In videoblogging@yahoogroups.com, Brook Hinton [EMAIL PROTECTED] wrote: if you plan to take pictures of strangers and you're going to receive any income from that, you need to have a commerical purpose consent form signed acknowledging that. Actually this is still a grey area. This area where it is NOT grey is when the person's image is used in advertising or promotion, which courts have ruled includes something like a magazine cover as it is in essence advertising the magazine itself. And of course misrepresentation (which such use really is) is a clear cut issue. But when it comes to the Cartier-Bresson aspect of art documenting public life, even when the resulting work is sold, we are still floundering in uncertain waters (and I note that to require releases for such work would make a huge portion of very important cultural work illegal or impossible to perform). This is different, however, than formal interview situations, in which case releases are indeed prudent, regardless or their legal necessity. Disclaimer: not a lawyer. Brook ___ Brook Hinton film/video/audio art www.brookhinton.com [Non-text portions of this message have been removed]
Re: [videoblogging] Re: Creative Commons and Virgin being sued for photo use
It depends on more factors. While there usually can be no expectation of privacy (there are exceptions to the public is fair game rule of thumb) you still have to worry about things like commercial misappropriation depending on your intended use. As Brook already pointed out. And all of this varies by country of course. I've said this many times before, but I'll gladly repeat myself. Don't just read brief messages on legal forums. These issues are complex. Get a real book that deals with all the aspects of mass media law. You do need to educate yourself. I can recommend getting a college text book on the topic. - Andreas, not a lawyer either. Den 23.09.2007 kl. 23:17 skrev David [EMAIL PROTECTED]: I read on a legal forum that a person in public can have no expectation of privacy and that, therefore, you can take images of them. Cartier-Bresson photographs and your videoblog with random incidental people walking by, therefore, are permissible. --- In videoblogging@yahoogroups.com, Brook Hinton [EMAIL PROTECTED] wrote: if you plan to take pictures of strangers and you're going to receive any income from that, you need to have a commerical purpose consent form signed acknowledging that. Actually this is still a grey area. This area where it is NOT grey is when the person's image is used in advertising or promotion, which courts have ruled includes something like a magazine cover as it is in essence advertising the magazine itself. And of course misrepresentation (which such use really is) is a clear cut issue. But when it comes to the Cartier-Bresson aspect of art documenting public life, even when the resulting work is sold, we are still floundering in uncertain waters (and I note that to require releases for such work would make a huge portion of very important cultural work illegal or impossible to perform). This is different, however, than formal interview situations, in which case releases are indeed prudent, regardless or their legal necessity. Disclaimer: not a lawyer. Brook ___ Brook Hinton film/video/audio art www.brookhinton.com [Non-text portions of this message have been removed] -- Andreas Haugstrup Pedersen http://www.solitude.dk/
[videoblogging] Re: Creative Commons and Virgin being sued for photo use
The Cornell Law School Legal Information Institute has a page that talks about this very concept. In a nutshell it depends on where you live in the U.S. and the intended purpose of the photograph. The Right of Publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion. This is an extract that is taken out of context so to read the whole deal visit http://www.law.cornell.edu/wex/index.php/Publicity Gena http://outonthestoop.blogspot.com --- In videoblogging@yahoogroups.com, David [EMAIL PROTECTED] wrote: I read on a legal forum that a person in public can have no expectation of privacy and that, therefore, you can take images of them. Cartier-Bresson photographs and your videoblog with random incidental people walking by, therefore, are permissible. --- In videoblogging@yahoogroups.com, Brook Hinton bhinton@ wrote: if you plan to take pictures of strangers and you're going to receive any income from that, you need to have a commerical purpose consent form signed acknowledging that. Actually this is still a grey area. This area where it is NOT grey is when the person's image is used in advertising or promotion, which courts have ruled includes something like a magazine cover as it is in essence advertising the magazine itself. And of course misrepresentation (which such use really is) is a clear cut issue. But when it comes to the Cartier-Bresson aspect of art documenting public life, even when the resulting work is sold, we are still floundering in uncertain waters (and I note that to require releases for such work would make a huge portion of very important cultural work illegal or impossible to perform). This is different, however, than formal interview situations, in which case releases are indeed prudent, regardless or their legal necessity. Disclaimer: not a lawyer. Brook ___ Brook Hinton film/video/audio art www.brookhinton.com [Non-text portions of this message have been removed]
