More abuse of open source for profit

September 27, 2007 9:45 PM

Abuse of creative commons.So Virgin has followed in the footsteps of Viacom by stealing a photo from a Creative Commons directory, and using it without proper attribution. Unfortunately the victim is suing Creative Commons instead of Virgin, claiming the license was deceptive.
posted by gandledorf (76 comments total)

A nation of dorks watches the lightning, hears the thunder and waits, with bated breath, for Cory Doctorow to come down off the mountain.
posted by felix betachat at 10:00 PM on September 27, 2007 [7 favorites]

Has the wording of a CC license been arbitrated in court before?

Anyway, Damon Chang chose a specific license that relinquished most of his rights, and those of his niece's — if anything, she should be suing him for being such a dumbass.

I use a different CC for my photos on Flickr, and was given attribution for a concert picture I took. The system works when the participants are honest and know what the terms are.
posted by Blazecock Pileon at 10:11 PM on September 27, 2007

Did they "steal" it? Aren't you supposed to use things licensed under the creative commons? They should've attributed, sure, but that's not stealing.
posted by Mr. President Dr. Steve Elvis America at 10:12 PM on September 27, 2007 [1 favorite]

This could have been prevented, you know, if the uploader had read the license. There are different degrees of CC licenses.

Virgin was perfectly within their rights to use that photo. They simply needed to attribute it correctly.

But it is the job of the person doing the uploading to make sure he or she possesses the rights, and when selecting a license, understands exactly what permissions it grants.
posted by cmgonzalez at 10:16 PM on September 27, 2007

Man clicks 'Accept' without reading license agreement -- Film at 11.
posted by Reggie Digest at 10:22 PM on September 27, 2007 [3 favorites]

I'd hit it.
posted by Poolio at 10:33 PM on September 27, 2007 [3 favorites]

Yeah, I read the massive long comment thread on this on Flickr a few weeks back. Most remarkable were the ranks of "Professional Photographers" turning up and abusing people for using Creative Commons licenses at all. Along the lines of:

"Creative Commons is theft, it's taking away the jobs of proper photographers like me! If it wasn't for Creative Commons, Virgin would have paid someone like me thousands and thousands of dollars for that picture! Shame on you! Respect proper copyright, not commieright!"

Cue the sound of the world's tiniest violin playing a sad, sad song. If all it takes for "Professional Photographers" to earn thousands and thousands of dollars is take a picture as good as some random guy on Flickr, I'm glad to see that sort of elitism crumble.

Yes, Virgin is taking advantage of a free resource, where previously they would have had to pay. But they only followed the license specified. What are you going to do, make another Creative Commons license that allows commercial use, but only by kewl mash-up artists, not multi-national corporations?
posted by Jimbob at 10:44 PM on September 27, 2007 [3 favorites]

Did they "steal" it? Aren't you supposed to use things licensed under the creative commons? They should've attributed, sure, but that's not stealing.

Yeah, they did attribute it. Virgin didn't do anything wrong, as far as I can tell. You can use a non-commercial license if you want.

I think what's really pissing people off here is that the advertisement is somewhat insulting. It's not a major insult, but I think pretty much even the slightest insult becomes a lot larger when used in a major advertising campaign. I mean, it's one thing to be called a dork, it's another to be held up as the archetype of dorkyness.

The other legal question here is the issue of a model release. Normally you need a model release for commercial photography. It's pretty much standard. But who's responsibility is it to prove the release of a CC licensed image? Is it the photographer, or the person using it? Corporations should probably avoid using CC images of people unless they are pictures of the photographer, or they have some way of knowing the model is "OK" with the use.

Finally, it would make more sense to sue flickr then CC, after all flickr is the one that puts CC licensing as a dropdown, do they actually make sure people read the things first?
posted by delmoi at 10:46 PM on September 27, 2007

w00t grundlebarf!
posted by wemayfreeze at 10:46 PM on September 27, 2007

But they only followed the license specified.

That's not clear. It appears that Virgin may not have given attribution.
posted by Blazecock Pileon at 10:49 PM on September 27, 2007

here is the profile of the photographer, and here is the profile of the model. It looks like the guy took back his licenses.
posted by delmoi at 10:52 PM on September 27, 2007

It appears that Virgin may not have given attribution.

The either did, or they didn't - surely people would have figured out if they had or hadn't by now? As far as I'm aware, they credited the Flickr page the photo came from. Given that most people on Flickr don't provide their real, full names, this seems the most efficient way to do things.
posted by Jimbob at 10:53 PM on September 27, 2007

Yeah, they did attribute it. Virgin didn't do anything wrong, as far as I can tell. You can use a non-commercial license if you want.

According to the article they failed to attribute it.
posted by gandledorf at 10:54 PM on September 27, 2007

That's not clear. It appears that Virgin may not have given attribution.

"Saw this while I was walking into the city earlier today - down in the bottom corner it says that the photo is from flickr.com/photos/chewywong."

How can you read that and not think it's attributed?
posted by delmoi at 10:54 PM on September 27, 2007 [2 favorites]

They have included a link to the home page of the photographer's Flickr account in the bottom corner of both the billboards and the web versions of the ads, but they haven't directly named the photographer, linked to the photo itself, or referenced/linked to the CC licence the photo is under - all of which are the standard attribution required by the CC licence. Although the licence allows users to vary these requirements when it's 'reasonable', it can be argued that Virgin had no reason not to give greater attribution.

Maybe you shouldn't be allowed to select a CC license on your photos on Flickr unless you also make your full name and contact details available.
posted by Jimbob at 10:58 PM on September 27, 2007

It appears that Virgin may not have given attribution.

I didn't see the actual ad, but I read comments saying it had the flickr URL on it. If you read a CC license, it says very plainly that giving out the URL of where you found something is the preferred way to do attribution.

From my reading of the initial flickr thread about it, nothing was "stolen". The photographer chose the least restrictive license, and Virgin as far as I can tell did everything correctly and even put attribution on their ad. There may be model release issues but that would be the photographer's realm.

Essentially I see no law being broken here and I'm actually looking forward to seeing CC get tested in a court of law by a real judge. A lot of people asked us how the license language would hold up when we launched CC licenses and the lawyers spent years working on it preparing for something like this.
posted by mathowie at 10:58 PM on September 27, 2007 [3 favorites]

It was not a proper attribution, see here for more details.
posted by gandledorf at 10:58 PM on September 27, 2007

(actually the above link has a pretty in-depth discussion, including comments from the model and her brother, who contacted the lawyer, etc)

I'd go there if you want to see the primary source material on this.
posted by delmoi at 11:02 PM on September 27, 2007

So then the ball's back in Flickr's court?

Flickr says "The best way to attribute CC photos is to just give the link to them."

But CC says "A link's not good enough, you also need the actual name of the creator, title of the work, indication of which license the work is under, indication of whether it is a derivative work or not".

All of which would make a hell of an aesthetic impact on an image, would they not?
posted by Jimbob at 11:02 PM on September 27, 2007 [1 favorite]

gandledorf, I sat through 3 years of discussions of the license language when I worked at CC.

Section 4b of the actual legal code for the license describes what "attribution" means:

...the name of such party or parties; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work

Maybe they didn't mention the original title, but the URL is certainly stressed in the section as being appropriate and preferred.
posted by mathowie at 11:07 PM on September 27, 2007

Actually, according to the person who posted the image, model releases are actually not required in Australia. But who knows how accurate that is.
posted by delmoi at 11:10 PM on September 27, 2007

From some anonymous person on flickr

Hi, this has been an interesting read, and I am probably coming in far too late on the debate, but I am an Aussie lawyer that specialises in this stuff.

Yes, what Virgin did is wrong under Australian law.

Whether or not use of the photo constitutes a breach of copyright depends on what the CC licence says (I've not looked at the CCL but if it says any use, well, doh, that means any use).

However, everyone is quite right in asking about the model release. We have a thing here in Australia called passing-off which is, essentially, the right to protect yourself from falsly endorsing somebody else's product. By showing the girl the suggestion is that she is endorsing Virgin Mobile.

Its also arguable that there could be a breach of privacy element to it (expanded by the recent UK case with Michael douglas and Catherine Zeta Jones) but that would be a harder case to make out.

Most of the other images are probably less likely to be a problem for Virgin.
...

posted by delmoi at 11:14 PM on September 27, 2007 [1 favorite]

A lot about this "case" seems to revolve around the photographer and subject being confused about the ad's language. Because it says "dump" they seemed to initially think it was a derogative remark using her image but I think it's supposed to be promoting a new SMS service and her image is supposed to be a good thing.
posted by mathowie at 11:20 PM on September 27, 2007

I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes "commercial use"), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community.

On the Texas suit against Virgin and Creative Commons (Lessig Blog)

This is a very good example of the complexities of copyright and other rights and the necessity of educating the public and ourselves about what copyright exactly is. As Larry points out, the posts on Slashdot are for the most part accurate and correct, but in a nutshell - Creative Commons is about copyright and NOT about privacy or other non-copyright issues. Just because something is licensed under a Creative Commons license, it DOESN’T mean that you can do anything you want with it. Different jurisdiction around the world have a variety of different laws, but depending on where you, property rights, moral rights, privacy laws and other laws may restrict what you can do with a photo. It is the responsibility of anyone reusing or remixing works to understand what rights may apply in their particular application. In particular, commercial use can trigger a variety of restrictions and a CC license on the photo by a photographer only relates to the rights that the photographer might typically have.

Joi Ito's Web: The Texas suit against Virgin and Creative Commons
posted by gen at 11:27 PM on September 27, 2007 [1 favorite]

The Register's five-minute-hate for Creative Commons obscured any point they were trying to make.
posted by dhartung at 11:29 PM on September 27, 2007 [4 favorites]

So the gripe is merely that Virgin didn't attribute the work precisely enough? I have a hard time caring about that, since it looks like Virgin was certainly complying with the spirit of the license. I could follow that URL and get to the actual photo within a few clicks, except he's taken the photo down.

The model release is a separate issue.
posted by hattifattener at 11:31 PM on September 27, 2007

The ultimate responsibility lies with the person that attributed the license to the photographs. GUILTY GUILTY GUILTY.
posted by dhammond at 11:46 PM on September 27, 2007

I don't see how they can expect to win a suit against the CC people. The CC license is just a body of text that you can use if you wish. No goods changed hands and no contract was signed, so it's going to be hard to show that the writers of the CC license are somehow responsible for someone misunderstanding their language. I just don't see how they can be found to be liable for anything.

Flickr might be liable, because there is a demonstrable relationship there, but the CC writers? Unlikely.
posted by Malor at 11:56 PM on September 27, 2007

Geez. Some random dude puts his photo out on the internets under the CC license. Some corporate whore decides that it's cheaper to pay some wanking wannabe graphic designer 3 bucks an hour to troll flickr for photos instead of paying a studio for a photo or buy something stock. Seems to me the subject of the photo needs to sue the photographer, and the photographer is left holding the bag because of how he released the photo. If he doesn't understand the license he issued the photo under, then perhaps he ought to consult a lawyer, or keep a more restrictive license. I honestly can't see how flickr can be held liable since the default choice is to keep your copyright.

Yeah it's really cool to be progressive and hip and put your photos out there under a creative commons license hoping that some weenie like Radiohead wants to use your images, but if it's some bastard faceless corporate rape job like Virgin, it's evil. Afraid it doesn't work that way. If you want to pick and choose who uses your images, then you better choose your licensing wisely.
posted by Eekacat at 12:18 AM on September 28, 2007

I don't think the family has a case but I sincerely hope that they win. I also hope RMS cries so hard he poops in his little costume.

I wish there was a sensible license like the one Jimbob snarked about. Something that would let human beings listen to, broadcast, and alter your music freely while making sure that if some business would make a dime off of your labor you would be fairly compensated.

What works for software does not work for media. With the GPL license, both companies and programmers (at least the ones who'd rather have code to play with than food to eat) benefit. End users, not so much so. With the creative commons license, artists are fucked so that businesses can get free soundtracks for their ads and Timbaland can buy a new Bentley with beats he cut and pasted from that track you spent sixty hours working on. Somehow the free hosting CC licensed works get on archive.org just doesn't seem worth it.
posted by bunnytricks at 12:34 AM on September 28, 2007

Something that would let human beings listen to, broadcast, and alter your music freely while making sure that if some business would make a dime off of your labor you would be fairly compensated.

this CC License allows for free remixing and redistribution, but requires attribution, and for derivative works to be shared alike and does not allow commercial usage. It's not new, as I've been using it since it was v1.5 some years ago.

I'm not saying it's perfect, nor that CC is without issues of its own, but I think the issue here is more PEBCAK-related than anything else.
posted by heeeraldo at 12:58 AM on September 28, 2007 [3 favorites]

bunnytricks, you packed an amazing amount of ignorance into a very short space.

First: Creative Commons has nothing to do with Richard Stallman. Second, the Creative Commons license covers many possible usage scenarios. You can actually go through an online checklist, ticking off what features you want in your particular license, and have it generate a boilerplate for you. (I can't give you the link because the site's down right now, likely overloaded from the controversy.)

If you want a license that can be used freely for nonprofit things, but costs for commercial exploitation, that's very easy. Just check the right boxes, and voila!

You're basically decrying a transaction that was entirely voluntary, and bemoaning the fact that there's no license language that suits your needs. If you want to be absolutely sure that nobody can make a dime off anything you do, ever, that's really not difficult, it just takes a tiny modicum of research. You can even -- gasp -- write your very own. Yes! You too can put words together into sentences that tell people what they can do with your work. You can call it the Bunnytricks License.

Of course, judging from your snide little commentary mid-post, that may be expecting too much. There are other sites, btw, you might prefer; this one tends to be populated mostly by adults.
posted by Malor at 1:35 AM on September 28, 2007 [5 favorites]

I can't begin to comprehend how somebody would choose a license for their work without bothering to read it first. Do they just see the words 'Creative Commons' and think -- "I'm creative, that's me. This is obviously the appropriate license for a hipster like me to choose.'

With the creative commons license, artists are fucked so that businesses can get free soundtracks for their ads and Timbaland can buy a new Bentley with beats he cut and pasted from that track you spent sixty hours working on.

What, they've made Creative Commons licenses compulsory now? If I decide to give all of my money away, how does that count as me getting fucked? If I choose to do it, then it's a trade-off I'm making between exposure and recompense. If I do it without understanding the terms of the license, then that just makes me a moron. Unlike the GPL, it's hardly framed in complex legal jargon, after all.
posted by PeterMcDermott at 1:53 AM on September 28, 2007

I won't be astonished if we find out he's a corporate agent.
posted by zouhair at 2:04 AM on September 28, 2007

Is anyone else completely confused by that ad? Is she supposed to be some dorky Asian pen pal, that you can now dump because of text messaging? The text makes no sense.
posted by afu at 2:14 AM on September 28, 2007

One of the problems I've always had about the Creative Commons license is the lack of an option along the lines of "all rights [of refusal] reserved - ask permission before use or reuse".

Because, frankly, if some corporate giant used my art without permission I'd be annoyed, at the least.

I have released art under CC, but I take the above into account when I do.
posted by loquacious at 2:34 AM on September 28, 2007

loquacious: "One of the problems I've always had about the Creative Commons license is the lack of an option along the lines of "all rights [of refusal] reserved - ask permission before use or reuse".

Because, frankly, if some corporate giant used my art without permission I'd be annoyed, at the least.

I have released art under CC, but I take the above into account when I do."

Just make commercial use forbidden, then if automatically they'll need to contact if they badly want to use it commercially.
posted by zouhair at 2:37 AM on September 28, 2007

afu: I think that's the reason some people (including the subject herself, from her initial response on flickr) felt the ad to be derogatory. I could sort of see why it could be contrued as such, but meh. Subsequent comments from (presumably) locals in the thread seem to suggest that such phrasing won't make sense given the diversity of population in Australia. (I second delmoi's suggestion to read the flickr thread for full info.)

Also, this FAQ entry seems to imply that Virgin should have obtained the model release themselves?

You should be aware that all of the licenses contain a disclaimer of warranties, so there is no assurance whatsoever that the licensor has all the necessary rights to permit reuse of the licensed work. The disclaimer means that the licensor is not guaranteeing anything about the work, including that she owns the copyright to it, or that she has cleared any uses of third-party content that her work may be based on or incorporate.

posted by stumbling at 2:39 AM on September 28, 2007

Ha. I would never use a creative commons license for exactly these reasons - and besides, I've always thought the whole thing pointless, self regarding geekery. You don't need to put up any disclaimers to assert your rights to your intellectual property.

As a result, when the Sun newspaper 'borrowed' a photo from my site without asking, they were obliged to pay me the going rate for its reuse.
posted by rhymer at 2:42 AM on September 28, 2007

rhymer, the entire point of the Creative Commons licenses isn't to restrict rights, but to grant them, under conditions the licensor states, on a no-need-to-ask basis. They aren't about asserting any rights beyond ordinary copyright.

By the way, how about felix betachat, chiming right in with hate for Cory Doctorow right off the bat? C'mon now, at least wait until someone mentions him.
posted by JHarris at 2:58 AM on September 28, 2007

One of the problems I've always had about the Creative Commons license is the lack of an option along the lines of "all rights [of refusal] reserved - ask permission before use or reuse".

How is that different from "All rights reserved"? The part about "ask first and I'd probably let you" doesn't really grant anyone any additional rights automatically, it just means you're nicer than the average copyright holder. "All rights reserved" doesn't appear to imply anything about the attitude of the copyright holder.
posted by chrominance at 3:10 AM on September 28, 2007

"where was this? do you think virgin mobile will give me stuff?"
posted by photographer chewywong four months ago
posted by Pater Aletheias at 3:11 AM on September 28, 2007

I still have no idea what "Dump your pen friend" means,

Dump your pen friend = get rid of your pen pal
Dump your pen, friend = get rid of your pen
Dump, your pen friend = laxative by correspondence

I think the girl was just chosen because she was flashing the Virgin "V" anyway.
posted by afu at 3:16 AM on September 28, 2007 [1 favorite]

If I were Virgin and that girl or her family came after me, I'd be going after the original photographer for exposing me to the liability by offering up a license to use a photograph that he now claims he had no right to offer. It's like a classic bait and switch -- publish it yourself, tell other people that it's fine for them to use, then sue the ass off them when they actually take you up on the offer.
posted by PeterMcDermott at 4:09 AM on September 28, 2007

People need to learn to associate "commercial use" with "worst case scenario". Because they're already synonymous anyway.
posted by DaShiv at 4:14 AM on September 28, 2007 [1 favorite]

If you're gonna be dumb, you've gotta be tough. The model should kick her uncle's ass into next week, and Virgin should send him a polite letter saying something like STFU Learn to Read or Face the Sarlacc. NAM NAM NAM
posted by seanmpuckett at 4:24 AM on September 28, 2007

This story broke on Flickr a while back. It was being discussed in the forums for a while. The only issue people could see with Virgin using the photo is that they didn't have a model release for the girl.

And yeah, if you are going to put your photos out with a CC license, you should know what that means.
posted by chunking express at 4:35 AM on September 28, 2007

I think the girl was just chosen because she was flashing the Virgin 'V' anyway.
You know who else liked to flash the "Virgin V"?
posted by kirkaracha at 5:53 AM on September 28, 2007

It's good to see the real hatred and disdain that professionals have for the CC. This is a sure sign that it's working.

What works for software does not work for media. With the GPL license, both companies and programmers (at least the ones who'd rather have code to play with than food to eat) benefit.

Except companies don't have to redistribute modified GPL code. And the CC licenses shouldn't be compared to the GPL anyways because most of them aren't sufficiently viral. And the notion that this picture is so special and unique that Virgin or any corporation would've been willing to spend thousands on it if only the license had been different is just silly.

The reality is that creating media is cheap. It's cheaper than cheap; it's the definitive case of supply completely overwhelming demand. So there's nothing more laughable than an artist complaining about being denied royalties. The sods should be happy somebody even deemed their stuff good enough to steal. In the world of fantastically cheap media it's the distributors that will always be the ones who actually create value. Investing millions in time and money to create a reliable distribution channel is the only real 'risk' involved in mass production of art. It is the very act of distribution that gives art, like currency and all other easily duplicated assets, value in the first place. This idea that Timbaland is "stealing" when he recuts some random CC track is just as stupid as the media companies who claim hundreds of millions in "uncollected revenue" from pirates. In both cases what's actually happening is exactly what should happen: the market is stepping in to enforce what will always be the appropriate price of all media: zero.

If people really believe that their pictures are worth more than nothing, then by all means, don't give them away. Hide them away in silos and guard the treasure jealously. Let's see how far that gets them.
posted by nixerman at 6:39 AM on September 28, 2007 [5 favorites]

I'm not sure, but I would have thought that the person who posted the photo to flickr didn't own the rights to start with, as he was not the photographer. Will this have an effect on the suit?

But yes, in any case, he probably should have chosen a non-commercial license. I have all my flickr photos as non-commercial-sharealike; some were recently used by a student council in their handbook for new students, and I was chuffed and proud to have them there. But I would have been angry if anyone had used them for a commercial purpose.
posted by jb at 7:12 AM on September 28, 2007

Jesus, what the *fuck*, Register? That article is hilariously stupid. Can anyone explain why they have such a hardon for hating Creative Commons stuff? gandledorf, really, next time please try to find a less shrill and idiotic article to link. There was plenty of better stuff about this case out there.

CC has tried to idiot-proof their process as much as possible; the guy clearly (stupidly) chose to allow commercial use with no payment. This is a learn and move on moment if ever there was one. Instead, he files a lawsuit. But ok, let's test CC in court. Bet it wins.
posted by mediareport at 7:18 AM on September 28, 2007

His defense team t-shirts are a little over the top:

"All Rights Reserved motherfucker! Do you speak it?"
posted by KevinSkomsvold at 7:22 AM on September 28, 2007

Can anyone explain why they have such a hardon for hating Creative Commons stuff?

As far as I can tell, the writer is a UK transplant living in the bay area that hates everything about the silicon valley tech world, esp. free software type things. He's written dozens of articles lambasting anything Lessig has done. When i was at Creative Commons, we got an angry Register piece about once every three months. At best they are inaccurate op-ed pieces, at worst they are hatchet jobs.
posted by mathowie at 7:28 AM on September 28, 2007

All missing the point. Creative Commons "license" is worthless without written confirmation that the claimed copyright holder really is the legal copyright holder and that they hold enough rights across the board to the piece to actually have placed it under the CC "license" they chose. There is no indication that Virgin did this, so the "license" of the photographs gave Virgin absolutely no guarantees or rights. Without written confirmation, the CC "license" even disclaims that the copyright "holder" holds the copyright to the piece in the first place.
posted by erikharmon at 8:00 AM on September 28, 2007

loquacious: "One of the problems I've always had about the Creative Commons license is the lack of an option along the lines of "all rights [of refusal] reserved - ask permission before use or reuse".

Just echoing what zouhair says above.... under copyright law, you automatically keep all rights unless you explicitly sell or give them away. "All other rights reserved" is just directly saying that you're granting permissions only in the ways you explicitly mention.

But you don't even need to include THAT. If you don't clearly sell or give a right, you keep it. It's just safest to include that language.... that way, there's no possible confusion.
posted by Malor at 8:03 AM on September 28, 2007 [1 favorite]

In this case it really seems like Virgin is mostly in the right.

The one license that I wish existed would be something along the lines of "your free to use this idea/photo/beat but if you make more than $X off of it, you have to give me $Y," to allow some commercial use, but to prevent a situation where Beck has a hit single off your cool beats, while you deliver pizza to help your pregnant girlfriend.
posted by drezdn at 8:16 AM on September 28, 2007

A single link to a Register article, with editorializing. How do I keep ending on on grundlebarf's blog this week?
posted by chundo at 8:27 AM on September 28, 2007 [1 favorite]

From the FPP: "...the victim is suing Creative Commons instead of Virgin."

From the Register article: "And after taking legal advice, the Chang family is now suing Virgin Mobile USA and the Creative Common Corporation."
posted by ericb at 8:33 AM on September 28, 2007

Reading the first four comments on the flicker page I dont really feel bad for the photographer, he sounds like he didnt know what he was doing and used a CC license in the hopes of getting "free stuff".

model says says:

hey that's me! no joke. i think i'm being insulted...can you tell me where this was taken.


photographer says:

where was this? do you think virgin mobile will give me stuff?
Posted 4 months ago.


some guy says:

As for getting free stuff - it can't hurt to try, but if the photo was released under a CC license that allows for commercial use, then they haven't really done anything wrong.


model says:

what does that mean-CC license? how did chewywong get that license on his photos. so virgin mobile hasn't used his photos without his permission or anything?
posted by outsider at 8:44 AM on September 28, 2007

One of the problems I've always had about the Creative Commons license is the lack of an option along the lines of "all rights [of refusal] reserved - ask permission before use or reuse".

That's not a license - that's the way copyright works by default if you haven't licensed any rights.

Your objection is like complaining that you can't find a wallet that has a big warning sticker on the outside that reads "The money in here is mine. Don't take it without my permission."
posted by DevilsAdvocate at 8:59 AM on September 28, 2007

rhymer, the entire point of the Creative Commons licenses isn't to restrict rights, but to grant them...

Yeah, I know that. But a lot of people get confused about what CC means and would be far better off writing a simple two line explanation of what they are happy with. CC has also led to a widespread belief that you need to put some sort of license on your output. But you don't and in some cases may well be far better off not doing so.
posted by rhymer at 10:27 AM on September 28, 2007

I don't understand. When you choose a CC license, you explicitly go through a process where you have to choose whether or not you are going to allow commercial use. You can say 'Yes I Will Allow Commercial Use', or 'No I Will Not Allow Commercial Use'. If you choose the former and then some commercial corporation comes and uses your item for the commercial use, it is hard to see on what grounds you can sue.
posted by motty at 10:53 AM on September 28, 2007

Did Virgin fulfill all of the attribution requirements? Because printing a work's URI alone is not sufficient attribution according to both the legal code and the FAQ.

Did Virgin print the CC license URI, which is required by section 4(a): "You must include a copy of, or the [URI] for, this License with every copy ... of the Work You ... publicly display." Did Virgin include the original copyright notice? Did Virgin include the title of the work? Did Virgin include the name of the author? Did Virgin include a statement that their ad was a derivative work and not the original photo? All of those are required by the license. Read the legal code, section 4.

Maybe Virgin did include all of those things. The Flickr photo is too low-res to see all the text at the bottom. But if a license requires six things, and you do one of those six, that is not "in the spirit of the license". That is blatant disregard of the license.
posted by drew3d at 11:05 AM on September 28, 2007

I have nothing against CC and no real view on it. But all this does make me wonder why people bother and don't just write "You are free to reproduce content on this site for non-commercial use" or whatever...
posted by rhymer at 11:16 AM on September 28, 2007

There seems to be a lot of misinformation being passed around, pretty much every time this subject comes up.

Although when I first heard about the suit, my first instinct was to blame the photographer as well, after actually reading the Creative Commons license, it becomes more clear that the fault is on Virgin.

Why? Because the CC license is very explicit that it only affects the photographer's copyright over the image. It does not make any claims about the suitability of the image for any purpose, or indemnify a downstream user from intellectual-property claims other than the photographer's copyright.

There are two separate IP claims here. One is the copyright on the photo, the other is the model's ownership and control of how her image is used, particularly when promoting a product or in derogatory manner. The CC license affects the former but not the latter, and devotes two paragraphs of pointed legalese to clarify the point:

UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE.
...
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK

(It's worth pointing out that this section only exists in CC licenses from versions 1.5 onwards; version 1.0 was completely different (and dangerous, IMO) in this regard.)

So, the photographer put the image up under a CC license; fine. But when Virgin picked it up, they should have realized that the CC license did not equal "this image is OK for us to use in promotional materials," because the CC license doesn't imply a model release.

Virgin blew it. And it seems that even the girl's lawyers agree on that, according to the CC's FAQ page on the subject"

Is Creative Commons liable?

No.

Do you have any authority for that answer beyond your own (some might say self-serving) views?

Well, listen to the lawyer who brought this case in his interview with CNN. At approximately the 2:16 mark of the interview, he’s asked how there could be a lawsuit here given that the photographer’s license authorized commercial use. “The commercial use has really been blown out of proportion. It’s really irrelevant to our case,” he says. “What’s important here is that Alison has a separate and independent right of privacy.”

So what they're really doing is going after Virgin for ignoring the model's rights when they used the photo; naming Creative Commons was basically taking the shotgun approach, it doesn't seem like they're really the target.
posted by Kadin2048 at 11:31 AM on September 28, 2007 [1 favorite]

Thank you, Kadin2048. That pretty much clears it up for me: it's not about the CC at all as such, it's about the rights of the model in the picture, which were not covered by the CC license, though Virgin behaved as if they thought they were.

The bit about the photographer suing CC claiming that they failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use,” is right up there with the woman suing MacDonalds over the hot cup of coffee turning out to be hot.
posted by motty at 11:44 AM on September 28, 2007

motty, your analogy to the woman suing McDonalds for hot coffee is not correct. In that case, the coffee served was 40 degrees hotter than normal coffee. In this case, all the information about the license was contained in the license. Creative commons licenses are presented in an easy to understand manner, there are no hidden dangers.
posted by demiurge at 11:52 AM on September 28, 2007 [1 favorite]

What is confusing to me is that to me as an individual, it doesn't appear that the CC license helps me avoid usage complexity at all. If it says the work is free for commercial use, my natural assumption would be that all that crap has been worked out and it's free for commercial use. Then I have to go back to a FAQ to find out that no, it's still bound by all the extraneous legal bull. This fact is obviously not clear to either people putting works under CC licenses nor people using them. I am glad that Creative Commons says they are doing something about this.
posted by erikharmon at 11:53 AM on September 28, 2007

I use a CC license for the few photos I've uploaded to flickr, and the only thing I've done as a result of this article is change the license from 'Attribution-ShareAlike' to 'Attribution-NonCommercial-ShareAlike,' as I was under the impression that NonCommercial meant absolutely no commercial use. Now I know that, if they ask permission, they can use it.

In my opinion, this is pretty much a case of the photographer/model (whichever one did it) not knowing what a CC license does. I had no idea what any of the licenses meant when I first looked at the page on flickr, but a link from the flickr license page led to a great explanation of exactly what the terms meant (along with the CC FAQ and some ' information specifically for photographers & illustrators.' It's not that hard to get an explanation of the terms. I'm not sure if Virgin did or did not provide proper attribution, but I'd accept a link if it was my photo.

Sidenote: One of my photos has been used for something with attribution, in the proper way that the license suggests, and in one of the ways I intended for its use. I'd say that Creative Commons works if you understand it.
posted by flatluigi at 12:09 PM on September 28, 2007

Question:
What is the difference between this CC license and a regular ol' copyright? Just curious.
posted by CitrusFreak12 at 3:44 PM on September 28, 2007

With the CC license anyone is free to use the work without asking as long as they: attribute it, don't use it for commercial use, and don't alter it (they must also make sure the CC license accompanies the work).

With regular copyright, you can do nothing with the work without asking first.
posted by crawl at 4:14 PM on September 28, 2007

Creative Commons works great if you understand it. All the whining about it I've seen so far in this threat springs from a complete lack of understanding of CC in particular, and/or copyrights in general.

CitrusFreak12 writes "What is the difference between this CC license and a regular ol' copyright? Just curious."
With this license you're still free to share. With regular ol' copyright, you are not free to do anything with the work, except maybe look at it, without permission.

This whole thing sounds like someone at Virgin's legal department was being lazy. Or perhaps they weren't even involved (!). Seems strange for a company to leave themselves open like this--they could've spent a pittance on a royalty-free image and been done with it. Seems insane that they'd use a person's likeness in an ad campaign like this without a release.
posted by mullingitover at 5:38 PM on September 28, 2007

According to this page, where Virgin is presented as a case study in commercial photography use, it's all over, and nothing happened/will happen because the people involved were all foreigners. I suppose it doesn't stop the ridiculous case against CC from going ahead though.
posted by jacalata at 6:10 AM on September 29, 2007

The problem I personally have with Creative Commons and other Open Source projects is the hype. So much talk about "revolutionary" this and "new paradigm" that confuses people not versed with the in and outs of copyright law (99.9% of the population, both individuals and big corporations) into this sort of shitty situation. Also, because they are hip, some people may adopt them without considering their consequences (as apparently has been the case here).

So remember:
Those are just licences based on good old copyright law. They imply rights and obligations on both user and creator. These rights and obligations may also vary depending on the precise terms of copyright law in your country.

BTW, I wonder if in Australia there's the same concept of "moral rights" as in Europe. According to that idea, even if a creator waives, sells or transfers his copyright to another party, he can still veto alterations to his work. Moreover, this right cannot be given away. Under European copyright law, this case would be very straightforward: superimposing the text "Dump your pen friend" onto that picture is an alteration that completely changes its character. Doing that without consulting the creator first is a clear breach of his moral rights on the picture.
posted by Skeptic at 8:50 AM on September 29, 2007

One of the problems I've always had about the Creative Commons license is the lack of an option along the lines of "all rights [of refusal] reserved - ask permission before use or reuse".

Because, frankly, if some corporate giant used my art without permission I'd be annoyed, at the least.

Good lord. You hold those rights implicitly to your creations. Asserting "All rights reserved (c)" merely asserts what is already implicitly true.

I was all ready to laugh at the guy who didn't know this, but apparently there's more than one of you. Sad.
posted by ikkyu2 at 10:45 PM on September 30, 2007

Also, those of you asserting that straight copyright forbids anyone from doing anything at all with the copyrighted work need to brush up on the concept of fair use.
posted by ikkyu2 at 10:50 PM on September 30, 2007