« The Big Con | Main | Surfing the Social Graph » Creative Commons, Commercial Use, and PrivacyFollowing up my earlier post about the law suit that involves Creative Commons: here's a clarification of my thinking after a conversation with someone who knows the territory pretty well. The situation: Virgin Mobile's ad agency created a promotion that used Flickr images with Creative Commons licenses that allowed commercial use with attribution. The family of a sixteen year old girl appearing in one of the images is suing Virgin Mobile because they didnt' get a model release allowing the use of her image. The family is suing Virgin Mobile and Creative Commons. In my earlier post, I said that the photographer may also have some liability. What I think now, acknowledging that I'm not a lawyer and this is just the speculation of a fairly well-informed layman, influenced somewhat by discussion with another knowledgeable person who is also not an attorney: Virgin Mobile, or whoever was creating the campaign for them, should have known that a model release was necessary. The suggestion that the photographer might have some liability here was based on an assumption I heard discussed in one of the threads about the issue, where someone speculated that he would be included in the suit because he offered the photo fro commercial use (i.e. used a license that allowed commercial use) without obtaining a release. However all he did was articulate a license relative to his rights as the photographer, pertaining to the use of his copyright image. This doesn't imply that commercial use of the image might not involve other rights, i.e. the model's. that should be addressed by an entity using the image in a commercial context. It seems to me that it's not the photographer's responsibility to ensure that the release is in place unless he's the one making commercial use of the image. I'm also pretty sure Creative Commons would have no liability. I think CC was included in the suit based on a misunderstanding – I saw language suggesting an assumption that "Creative Commons licensed the image." This is incorrect: the author of the work, in this case the photographer, licenses the image. Creative Commons just offers a kind of boilerplate for various "share" licenses, it has no direct involvement in the licensing of any specific content. We'll have better answers when we see what happens in court, but I wanted to post a clarification because I think my earlier post could cause some confusion (if anyone took it seriously, probably unlikely since, as I said, I am not a lawyer!). jon posted this at 8:38 AM |
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