Fair Use policy on flickr et al

Issy

Issy

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Anyone else notice the blurb this morning on CNN, here in the States, where a 16-year-old is sueing Virgin Mobile in Australia for using a photo of her from flickr on an ad campaign? I didn't realize that most of these photo upload sistes have fair use policies, even for comercial use?
 
The photographer was using a creative commons license, but the real issue is commercial use without a model release:
From:

http://4020.net/words/photorights.php#tpa

Commercial Use case study: Virgin Mobile "Are you with us"
In June 2007 Virgin Mobile Australia launched a controversial billboard and internet campaign to tout their SMS-TEXT services. What made it noteworthy was that they illustrated their ads with "creative commons" pictures appropriated from Flickr, without the photographers' knowledge or permission. Moreover a lot of the images also featured clearly identifiable depictions of people (eg. Molly E. Holzschlag or Alison Chang), again without their knowledge or consent.

Despite assertions the photos were used legitimately via Flickr's "creative commons" license, the fact is Virgin never obtained consent from any of the people shown in the ads: the license only applied to the photographer's copyright, not the subject's consent to use their likeness. Thus: (1) the images were used to sell products and services and (2) photo-subject consent was never obtained. Consequently the ads appeared to be in direct contravention of the TPA, and considering the magnitude of the campaign, prompt action could then be expected by the ACCC to injunct and fine the things out of existence.

Or so it would seem, except for one major problem — either by accident or design the people images were not taken in Australia and neither the photographers nor subjects were Australian citizens. Which put them beyond the jurisdictional scope of the TPA or any other Australian legislation! If the photographs were taken here, then the subjects would have a case. If they were taken overseas of Australian citizens, again people would have a legitimate complaint. But foreign persons + foreign photographers + foreign locations?…

Nyet. (Mind you it hasn't stopped Ambulance Chasers from trying.)

Luckily the campaign created such an international stink that Virgin Mobile had to respond. Despite the letter-of-the-law compliance, on July 25th the "areyouwithusorwhat.com" website was reworked and all identifiable images of people were removed. Furthermore, according to the "Adrants" website, Virgin Mobile then cancelled the whole campaign.

So in case you missed it, the moral of this story is: Always Get A Signed Release From Any Person Whose Image You Wish To Use In Advertising!
Click to expand...

...Mike
 
So as long as you use foriegners, you can commercially use their pictures?

Why would anyone use sites like Flickr? How hacked off is your family going to be when their pics are used in Herpes or gential wart ads?

Stock photo at least gives you a few pennies. (I'm over $7 on my five pictures in two months).

Mark
 
Don't worry - by default, you retain all rights when posting pictures on Flickr (IANAL, etc.).

The photographer in this case explicitly granted permission to use the photograph for commercial use as long as he receive attribution, which he did.
 
shenkerian said:
Don't worry - by default, you retain all rights when posting pictures on Flickr (IANAL, etc.).

The photographer in this case explicitly granted permission to use the photograph for commercial use as long as he receive attribution, which he did.
Click to expand...


.....ahhhhhhh. I see now. He just didn't get the model signoff that would allow him to offer it up. Interesting.

Bill
 
There are several types of Creative Commons Licenses. FLICKR lets you assign the type that best suits your needs. I use attribution (the photo can not be reproduced with out acknowledging who took it), non-commercial (to avoid just the problem presented in this thread), and modification is not permitted (to prevent malicious or other editing of the image).

If you don't want someone to use one of your photos without permission, never place it anywhere on the Internet. No site is "secure". At least with the appropriate CC license you can protect yourself if someone misuses your copyrighted image.

The photographer in question did not restrict commercial use in the original Creative License he chose (by default?), so Virgin Mobile might claim they assumed he had a release (otherwise he would have not permitted commercial use). However, if you look at the photographer's FLICKR stream, and particularly at the photo Virgin Mobile used, you would likely conclude the photographer did not have releases. Interestingly he later changed the license to "All Rights Reserved".
 
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