Use My Photo? Not Without Permission

[Cynthetiq]

Use My Photo? Not Without Permission
By NOAM COHEN
LINK
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.”

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?
LINK
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?

[Shauk]

i think it's just a picture.

[Siege]

Originally Posted by Shauk

i think it's just a picture.

So you're down (hypothetically) with having your face put on a giant billboard that advertises erectile difficulties?


Something similar also happened to my cousin. His face appeared on a Waterloo information packet.

[snowy]

Most community organizations around here are wise to the rules regarding using photos of other people, especially minors, and so most permission slips/waivers one might have to sign for children to participate in activities around this town usually include a proviso saying that the parent agrees to their child's image possibly being used in promotional materials and literature regarding the program.

Ms. Chang is a minor in the United States. As such, and according to our laws, only she and her parents have the right to her image, and no minor can enter into any kind of contract without parental consent. Given than neither was done in this case, and no kind of permission by them given regarding Ms. Chang's image, I can see how a cease-and-desist action on the part of Ms. Chang's family was an appropriate action. The TOS of the site this was posted on is irrelevant, given Ms. Chang's status as a minor.

[Plan9]

This is why we have annoying stock photo models.

And not minors who didn't consent to being used for adverts.

[Shauk]

Originally Posted by Siege

So you're down (hypothetically) with having your face put on a giant billboard that advertises erectile difficulties?


Something similar also happened to my cousin. His face appeared on a Waterloo information packet.

considering maybe 1/out of every billion people even know what I look like or would connect the dots to some stupid ad (who the hell pays attention to that crap anyways?)

I wouldn't really give a crap. In the least, I would be cool with some kickbacks, but I wouldn't feel insulted coming from a company that doesn't know anything about me, exposing my face to people who will never meet me, and rooting out the fact that the people who "care" enough about this nonsense arent the type of people who I'd want to be friends with anyway.

[ngdawg]

I just got done reading an article about a woman who lost a case in which she was sued for downloading music.
Turnabout is fair play-sue'em.
/reminds herself to start using her copyright stamp on all DA and Flickr uploads.

[analog]

Both of those articles contain people who specified their pictures could be used under the Creative Commons license, which includes for commercial use.

I don't hear anyone claiming there's no image credit, they're just upset their image is actually being used. If you grant permission for commercial use of a picture that has your image in it, it is part of that picture and not subject to separate likeness rights. Use of your image would come into play if they made a cartoon out of your image, or otherwise reproduced your likeness into another medium outside of the original picture. This does not include cropping out a portion of the photo and sticking you on a bus ad.

I'm all about people maintaining their copyright, but these people gave away their copyright, and are complaining about "image rights" now, which is nonsense. It's not your "image", it's a cropped portion of a photo YOU said was available for use.

from another part of the article:

------------------
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.
------------------

If you don't agree to the terms, or don't understand what the terms are well enough to agree as an informed individual, you can't claim stupidity later on down the road. You click "I agree to these terms"... just because you didn't read them, or couldn't understand them, doesn't mean the company can't do exactly what the terms of use say.

And, come on-- who doesn't understand what "commercial use" means?

[snowy]

Originally Posted by analog

Both of those articles contain people who specified their pictures could be used under the Creative Commons license, which includes for commercial use.

I don't hear anyone claiming there's no image credit, they're just upset their image is actually being used. If you grant permission for commercial use of a picture that has your image in it, it is part of that picture and not subject to separate likeness rights. Use of your image would come into play if they made a cartoon out of your image, or otherwise reproduced your likeness into another medium outside of the original picture. This does not include cropping out a portion of the photo and sticking you on a bus ad.

I'm all about people maintaining their copyright, but these people gave away their copyright, and are complaining about "image rights" now, which is nonsense. It's not your "image", it's a cropped portion of a photo YOU said was available for use.

from another part of the article:

------------------
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.
------------------

If you don't agree to the terms, or don't understand what the terms are well enough to agree as an informed individual, you can't claim stupidity later on down the road. You click "I agree to these terms"... just because you didn't read them, or couldn't understand them, doesn't mean the company can't do exactly what the terms of use say.

And, come on-- who doesn't understand what "commercial use" means?

Ms. Chang and her family gave no such permission. The photographer did. As the person whose image is being used, and as a minor in the United States, her image is protected by our privacy laws, and she has the right to have her attorney issue a cease-and-desist order, as well as sue the company that used her image without her permission.

[Infinite_Loser]

I'm with the "It's just a picture" crowd. Really. That's all it is. It's not like your soul was stolen or anything.

[analog]

Originally Posted by onesnowyowl

Ms. Chang and her family gave no such permission. The photographer did. As the person whose image is being used, and as a minor in the United States, her image is protected by our privacy laws, and she has the right to have her attorney issue a cease-and-desist order, as well as sue the company that used her image without her permission.

That's only if Ms. Chang and her family had agreed with the photographer that their images wouldn't be used for commercial purposes- and that, they'd have to have in writing.

The photographer owns the copyright to a picture, not the person being photographed. You are entitled to your likeness not being used without permission- her likeness was not used. It was the photographic capture of her onto a picture, and that picture was used.

Again, if they made her into a cartoon character, then she'd have a likeness rights violation.

People getting their photograph taken do not own the copyright, in any way, to that photograph. It is the copyright holder who says whether their photo can be used for commercial purposes, or not- and as long as they don't reproduce your likeness into another medium, there are no "likeness rights" violations.

At BEST, they have a libel case for the ad insisting she's the type of person a "pen pal" would dump. Even that would be hard to prove any actual damages.

[ubertuber]

Originally Posted by onesnowyowl

Ms. Chang and her family gave no such permission. The photographer did. As the person whose image is being used, and as a minor in the United States, her image is protected by our privacy laws, and she has the right to have her attorney issue a cease-and-desist order, as well as sue the company that used her image without her permission.

More to the point, the photographer wasn't in a position to allow people to use the photo under a creative commons license - he didn't have the model's position. It really comes back to a guy that uploaded his snapshots to flickr and checked boxes without understanding what they meant.

I have actually found flickr's TOS and copyright stance to be surpisingly easy to understand. Perhaps there has been a change since Cynthetiq stopped using them?

[Willravel]

Despicable behavior by Adidas. I feel badly for young Allison.

[Nimetic]

To me it seems sloppy from the point of view of the advertiser.

Although a professional photographer is probably pricey, I'd have thought it faster and easier to take a new photo.

I wonder... is this a case of "the subcontractor's subcontractor made a mistake". A-la Mattel.

[Hyacinthe]

I feel for the girl in this situation

About a year ago I went and had some professional photoes taken, these included a few nudes. Imagine how I felt when I went back a few weeks later to grab my prints and saw a poster sized print of me naked in their window facing the street.

They had not asked me if they could use the photo, was no contract they made me sign before I had the photoes taken so I hadn't agreed to let them use it. They just did.

I feel the situation with Alison is very similar, her permission was not sought before this photo was put onto the internet and under this license for use commercially. She would probably be more legally correct to sue the photographer rather then the company that has used her image. Though she probably won't seeing as he is a family friend of a fashion being her youth counsellor and all.

[JumpinJesus]

Whether it's just a picture or not doesn't matter. The law is very clear. You may not use a person's image for commercial purposes without their permission. The photographer does not get to give consent, only the subject or the model can give that consent.

[Cynthetiq]

Originally Posted by ubertuber

More to the point, the photographer wasn't in a position to allow people to use the photo under a creative commons license - he didn't have the model's position. It really comes back to a guy that uploaded his snapshots to flickr and checked boxes without understanding what they meant.

I have actually found flickr's TOS and copyright stance to be surpisingly easy to understand. Perhaps there has been a change since Cynthetiq stopped using them?

Actually, they changed their login process since being purchased by Yahoo! As their TOS has also changed slighty. Again, it is not that it is so difficult to understand, people for the most part don't bother to read them more often than not, just like when parking a car in a lot, the claim ticket explains the contract rights but you are just more interested in parking your car than making any objections to the contract.

Also, this last iteration since the change, I don't have to accept the TOS since I'm already logging in via a Yahoo account, the TOS acceptance isn't presented.

[Charlatan]

The easy thing to do is just reserve all rights on your flickr photos and then nobody can legally use your stuff.

[Cynthetiq]

Originally Posted by JumpinJesus

Whether it's just a picture or not doesn't matter. The law is very clear. You may not use a person's image for commercial purposes without their permission. The photographer does not get to give consent, only the subject or the model can give that consent.

Actually if you read the TOS for many of these services it isn't that clear. The photos become property of the service, and usually allowed for commercial uses by the appropriate companies. In the OP situation, Virgin is in the wrong unless they bought the image from Flickr.

Snapfish.com

VII. Copyright

When you use the Service, you become a participant in an online community of people who enjoy photography. In order for Snapfish to make your photos available to you and your invitees, as well as to use images to offer you a special variety of online services, Snapfish needs the rights to make use of all Content on the Service, in accordance with and subject to these Terms. Accordingly, as a condition to your Membership, you hereby grant Snapfish a perpetual, universal, non-exclusive, royalty-free right to copy, display, modify, transmit, make derivative works of, and distribute your Content, solely for the purpose of providing the Service. As a condition to Membership, you represent and warrant to Snapfish that you either own your Content or have written permission from the copyright owner to make such Content available to the Service.

Flickr.com

CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE

Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable:

With respect to Content you submit or make available for inclusion on publicly accessible areas of Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purposes of providing and promoting the specific Yahoo! Group to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Yahoo! removes such Content from the Service.

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Service other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Yahoo! removes such Content from the Service.

With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Service other than Yahoo! Groups, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.

"Publicly accessible" areas of the Service are those areas of the Yahoo! network of properties that are intended by Yahoo! to be available to the general public. By way of example, publicly accessible areas of the Service would include Yahoo! Message Boards and portions of Yahoo! Groups, Photos and Briefcase that are open to both members and visitors. However, publicly accessible areas of the Service would not include portions of Yahoo! Groups that are limited to members, Yahoo! services intended for private communication such as Yahoo! Mail or Yahoo! Messenger, or areas off of the Yahoo! network of properties such as portions of World Wide Web sites that are accessible via hypertext or other links but are not hosted or served by Yahoo!.

Kodakgallery.com

Copyright
Kodak Imaging Network is, unless otherwise stated, the owner of all copyright and database rights in the Service and its contents. You may not publish, distribute, extract, re-utilize or reproduce any such content in any material form (including photocopying or storing it in any medium by electronic means) other than in accordance with the limited use license set out in our Copyright Notice.

Responsibility for Your Images
You are responsible for all of the images you upload, share or copy using the Service. You must either own all right, title and interest in and to the copyrights in the images or have express permission from the copyright owner to copy and use such images for all purposes related to the Service, and the images may not violate or infringe upon the rights (including other intellectual property rights, privacy, moral or publicity rights) of others. Professional images that are provided to you by professional photographers or made available through websites, magazines, books or other resources, are protected by copyright and should not be uploaded, shared or copied using the Service.

I'd also like to add, just what do you do if you don't like what you read? You don't use the service is the prpper thing to do. Many people don't bother with that, they want to use the service or product. So they just don't bother to read EULA and TOS more often than not.

[JumpinJesus]

Cynthetiq,

That part is true, but when you sign up for these services, part of the agreement states that you claim ownership and permission rights to all your images. If you sign up, you're in essence telling them that you have all model releases. However, once a person uses an image, they have to be able to provide that release if its requested. If you can't provide it or don't have it, you don't have permission.

But you're right, it's up to the person uploading the images to make sure the permission exists, but if you're suing someone, who has more money, the photographer or Virgin?

Where it can turn into a grey area is if the model is in a public place in full view of the public. This is why paparazzi photographers can make money selling their images. So, I guess I'm actually contradicting my own post above. What are the odds?

[Cynthetiq]

Originally Posted by JumpinJesus

Cynthetiq,

That part is true, but when you sign up for these services, part of the agreement states that you claim ownership and permission rights to all your images. If you sign up, you're in essence telling them that you have all model releases. However, once a person uses an image, they have to be able to provide that release if its requested. If you can't provide it or don't have it, you don't have permission.

But you're right, it's up to the person uploading the images to make sure the permission exists, but if you're suing someone, who has more money, the photographer or Virgin?

Where it can turn into a grey area is if the model is in a public place in full view of the public. This is why paparazzi photographers can make money selling their images. So, I guess I'm actually contradicting my own post above. What are the odds?

That's why I'm stating that it's too complex and convuluted to the layperson. They just don't bother to read it because they want the service that is provided and not be bogged down with understanding the real terms of agreement.

I'm positive the most of us don't bother to read the EULA when you load software, and again, when you disagree with the points you just continue and use it anyways. Even when the terms change, and they send you a little email telling you that it has changed. For the most part you read it quickly since it has some highlighted items that are being changed, but again, you want to use the service so you don't bother.

The same thing in my opinion that happens with credit cards, and how they changed the TOS making it one day so that if you default on payment they can alter your APR to the highest or if some other credit agency has done so they could do the same.

I can't imagine how little we'd get done if people actually read and understood the the TOS and did the right thing like not utilize the product/service.

It doesn't work that way when you buy a car, toaster, or shoes. Can you imagine if buying a pair of Nike shoes stated in the TOS that you were to not wear these shoes to do criminal acts? Or a car that states you won't use it for war purposes or transport illegal items? People would just laugh.

It is cautionary to sue large corporations because they can just deep pocket the little person into oblivion racking up tons of legal fees before even making it to court. Sucks but it happens all the time.

So in essence if Snapfish was the advertiser, they'd be in the right since they own the image and can make derivative works from it.

[ratbastid]

Originally Posted by analog

Both of those articles contain people who specified their pictures could be used under the Creative Commons license, which includes for commercial use.

Just to clarify--and because I'm a BIG proponent of Creative Commons and I'd hate for it to get a bad name...

There are six different Creative Commons licenses that content producers can choose from. ALL CC licenses require attribution to the original content provider. They all allow people to share and distribute your work. Beyond those basic permissions, you can slice-and-dice exactly what else you're giving your permission to many different ways, choosing to allow or deny commercial use and the production of derivative works, and to require or not require "share-alikeness" (i.e. whether derivative works must be released under the same CC license).

Certainly the attribution requirement was violated here. It's a matter of law, not license, whether the subjects of the photograph retain rights to the use of their image.

[LazyBoy]

Gives me flashbacks to the veteran cutting down the Mexican flag, because he's an American.....wonder what they'd say if you *techincally* took down YOUR picture?

-Will

[casual user]

i actually find it amusing that there's a slight chance that my dumb mug is posted on some billboard in austria or some shit