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Tilted Cat Head
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Location: Manhattan, NY
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Use My Photo? Not Without Permission
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Use My Photo? Not Without Permission
By NOAM COHEN
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THIS is no “star is born” story for the digital age, though at first it may seem like one.
One moment, Alison Chang, a 15-year-old student from Dallas, is cheerfully goofing around at a local church-sponsored car wash, posing with a friend for a photo. Weeks later, that photo is posted online and catches the eye of an ad agency in Australia, and Alison appears on a billboard in Adelaide as part of a Virgin Mobile advertising campaign.
Four months later, she and her family are in Federal District Court in Dallas suing for damages.
On the billboard, Alison’s friend has vanished and so has the Adidas logo on her hat. Her image is accompanied by a mocking slogan — according to the ad, Alison is the kind of loser “pen friend” (pen pal) whom subscribers will finally be able to “dump” when they get a cellphone.
The conduit for this unusual bit of cultural exchange, it quickly emerged, was the Flickr photograph-sharing service, which is owned by Yahoo. The image had been uploaded to the site by the photographer, Justin Ho-Wee Wong, Alison’s church youth counselor.
Much more than a virtual attic for old photographs, Flickr has flourished as a gathering point for friends and family who want to keep in touch with one another’s lives — a social network with photographs as the organizing principle.
The site simultaneously has become a global clearinghouse for images; at last count, it had more than a billion of them. With its extensive cataloging, the site allows users to search through strangers’ digital photo albums for topics, faces or locations that interest them. That includes, apparently, Australian ad executives holding a casting call for exuberant young Americans.
There are many accusations of people misusing Flickr photographs, including the case of an Icelandic woman who says an online gallery based in Britain sold her work without her approval, and a German photographer who says a right-wing Norwegian political party used a photo of her sister in its materials also without permission.
A most recent example concerns Lindsay Beyerstein, a Flickr member, who says she sent a cease-and-desist letter to Fox News last week over the use by “The O’Reilly Factor” of her photograph of a blogger; the photo can be viewed at Flickr where Ms. Beyerstein has reserved all her rights. Fox News said it had not received the complaint yet.
In another Flickr twist to the Virgin Mobile case, it was a Flickr member from Adelaide, Brenton Cleeland, who first noticed the ad on Churchill Road and, naturally, photographed it to share on Flickr. In the spirit of a site populated with amateur photographers in search of an audience, Mr. Cleeland wanted to spread the news of Mr. Wong’s success. “I wonder if he knows that his photo is being used here,” he wrote in a posting, adding, “Anyway, congratulations!”
Alison, however, was the first to chime in online, and was hardly as pleased: “Hey that’s me! no joke. i think i’m being insulted.”
Chang v. Virgin Mobile USA is not the typical intellectual property rights case. A prolific member of Flickr, Mr. Wong has more than 11,000 photographs there that anyone with the time or inclination could page through. And, until recently, those photographs carried a license from Creative Commons, a nonprofit group seeking alternatives to copyright and license laws. The license he selected allowed them to be used by anyone in any way, including for commercial purposes, as long as Mr. Wong was credited.
Instead, the case hinges on privacy, the right of people not to have their likeness used in an ad without permission. So, while Mr. Wong may have given away his rights as a photographer, he did not, and could not, give away Alison’s rights. In the lawsuit, which Mr. Wong is also a party to, there is an argument that Virgin did not honor all the terms of the nonrestrictive license.
(Virgin Mobile USA, in a statement, did not address the issues in the lawsuit but said that, as a “independent entity from Virgin Mobile Australia,” it had been “erroneously named” in the suit. An e-mail message to a Virgin Mobile Australia spokeswoman was not answered.)
Damon Chang, Alison’s brother, wrote in an e-mail message from Taiwan that he “personally sent Virgin Mobile a complaint letter” asking for an explanation. “They responded by saying they are ‘promoting creative freedom,’ that they didn’t do anything wrong,” Mr. Chang wrote. “I take that as, ‘We didn’t do anything wrong, hence we could do it again.”
The lawsuit, filed by the Changs’ lawyer, Ryan Zehl, from the Houston law firm Fitts Zehl, also names Creative Commons. Mr. Zehl said, “as the creator of this new license, they have an obligation to define it succinctly.”
He said that the term “commercial use” was too vague to inform users of the license and that it was incumbent on Creative Commons to raise the issue of the rights of the people who appear in the picture.
Lawrence Lessig, the Stanford law professor who was served the papers on behalf of Creative Commons, said he was sympathetic to the Changs’ plight.
But, added that, “the part about us is puzzling. It says we failed to instruct the photographer adequately, but the first question is, ‘do you want to allow commercial uses?’”
As for giving more advice about the rights of the subjects who appear in photographs, Mr. Lessig said that Creative Commons has to be careful not to provide “what looks like legal advice.” But, he added, “this photographer did nothing wrong when he took this photo of this girl, and posted it on his Flickr page. What he did wasn’t commercial use, which triggers the legal issues. If there was a problem here, it was by Virgin.”
In the world of creative works, photography has always been in a category alone. The camera was seen as a “soul stealer” in its infancy, and the fact that a photograph was a copy of reality intrigued theorists like Susan Sontag, who wrote presciently in “On Photography” (1977) about the attraction to photographs felt by ad directors.
“Photography does not simply reproduce the real, it recycles it — a key procedure of modern society,” she wrote. “In the form of photographic images, things and events are put to new uses, assigned new meanings which go beyond the distinctions between the beautiful and the ugly, the true and false, the useful and the useless, good taste and bad.”
She concluded, “In the form of a photograph the explosion of an A-bomb can be used to advertise a safe.”
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Is That You I Saw at the Bus Stop…in Adelaide? click to show Is That You I Saw at the Bus Stop…in Adelaide?
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By Noam Cohen
Tags: creative commons, Flickr, photography, Privacy
In Monday’s New York Times, I wrote about Alison Chang, a 15-year-old from Dallas whose image was used halfway across the globe in an advertisement for Virgin Mobile Australia. It was a case that shows the precariousness of privacy in the Internet age.
The photographer was Ms. Chang’s church youth counselor, who uploaded the photo to Flickr, Yahoo’s photo-sharing site, specifying that the image was available for commercial use under the terms of the Creative Commons license. Ms. Chang’s family, in a lawsuit filed in a Dallas federal district court, contends that neither Virgin nor her counselor, Justin Ho-Wee Wong, sought her permission for the image to be used.
One of the interesting aspects of all this is how fast word of these ads traveled halfway around the world to the photographers and their subjects. The photo of Ms. Chang, for example, was used in a bus shelter advertisements in Adelaide. Her strongest objection was to what she saw as a disparaging caption: “Dump your pen friend.” The campaign uses the slogan “Are you with us or what?”
Gaetan Lee, a 33-year-old science museum consultant in London, has set up his own group on Flickr that documents the Virgin advertisements and the photos they are based on. He began this after one of his own pictures was used in a Virgin bus-shelter ad. Mr. Lee, who has posted 11,000 photos on Flickr, estimated that about 1,000 of them have wound up on blogs, and at least three illustrate Wikipedia entries.
“I thought on a personal level, this is really cool thing,” he said. But he added he is reconsidering his choice to make his pictures available for commercial use. “I have pictures of friends on there, and am worried about how will it be used.” Even if the legality is unclear, he said, “I’ve just had this feeling that sometimes this can be abused, so I thought, I will absolutely be sure if that anyone wants to use it commercially, they need to get permission.”
Virgin Mobile Australia issued a statement saying it “did seek legal advice before we went ahead with this campaign,” which ended in June. (One of the issues in dispute for the federal district court to decide is whether the Changs have to take the case to Australia; the Changs’ lawyer says he is confident that because the photograph was taken in the United States and the people involved are Americans, he won’t need to move from Dallas.)
The statement continues: “The decision to feature Flickr photography was based on the desire to champion a terrific, contemporary, online community. It was part of an approach designed to reject clichéd ‘advertising’ imagery in favor of more genuine and spontaneous shots. It is typically Virgin to embrace fresh initiatives and the democratic spirit of Flickr matches the inclusive nature of our ‘Are you with us or what?’ campaign.” |
This is the very reason I have slowly stopped using sites like Flickr and photobucket to post pictures that I actually care about. It is the simple TOS that you don't really have any idea as to what they really mean. They are wordy, too much legalese and generally are fraught with items that most don't understand or care to try to understand. Maybe there needs to be a "layman" version that deliniates just what these things are mean in simple words. Of course lawyers won't want this since this probably puts up a 2nd front for them to have to defend against.
So while I don't have much protection as to what I release out on the net, if it is from my own server I have a little more protection since I didn't just waive my rights just by uploading to a simple service.
This is slightly different in the fact that someone else took the picture, someone else uploaded it. I can see a good reason now that Skogafoss doesn't allow people to take her photo.
What do you think?
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