Bloggers Beware: Even Creative Commons Photos Could Land You in Court
Thanks to Kevin O'Keefe for the heads up on a lawsuit every blogger should know about. A Texas minor is suing Virgin Mobile Australia for use of a Creative Commons photograph in a commerical ad campaign.
The lawsuit alleges the use of the photograph by the company violated the minor's privacy rights. The plaintiff's attorney says the company should have obtained consent from the parents of the minor before using the photograph in the ad campaign. The photograph was posted on flickr.com by the minor's friend who is also a plaintiff claiming the Creative Commons 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."
This should serve as a wake up call for bloggers. Many bloggers I know, including many of the IowaBiz authors, routinely upload photographs from the Creative Commons portion of flickr. Have you thought about whether you were violating the privacy rights of somone in the pictures you upload? Probably not.
Arguably it is much more likely a company using the photograph in a commerical ad campaign is going to get sued rather than your ordinary blogger. In this case the company also had phrases with the photos that could have been interpreted as offensive to the minor such as "Dump Your Pen Friend" and the real kicker - "Free Text Virgin to Virgin".
There is much discussion to be had on these issues including the blogs of Internet PR expert Shel Holtz and Stanford law professor Lawrence Lessig.
The lesson is be careful when you upload photos, even Creative Commons photos, from any sites such as flickr. As Holtz says:
. . . the social media community embrace and extoll the virtues of Creative Commons licenses, but this lawsuit seems to show that they are not a panacea. It’ll probably be up to the courts, ultimately, to decide who has rights to your image once it escapes into the social media space, with or without your knowledge or consent.
I also encourage you to check out the video of the plaintiff's attorney. He makes a decent argument on behalf of his client.
I'd disagree with the "probably not" thought.
I'd also suggest that putting a photo on a blog with proper attribution, and with proper use of the Creative Commons license is much different than using a Flickr photo in an ad campaign as Virgin did.
Let's not lose sight of the trees by focusing on the forest on this one. No need to run blindly away from proper use of Flickr and Creative Commons. Just use it properly.
I agree that you need to be cognizant of the issues, but I disagree as to the ultimate lesson here.
In addition to my career, I enjoy amateur photography. As others seem to enjoy my photos as well, I upload them to flickr under a by-nc-nd Creative Commons license. To my mind, by explicitly placing such a license on my work, I am telling the world to go ahead and use my photos so long as they credit me and it's for non-commercial purposes.
To me, the license process seems fairly straightforward (with a few exceptions*). The burden, in my mind, is not on the blogger but on poster. If I mis-choose a license, as I understand was the case in Texas, the problem is mine.
As I see it, the issues are:
1) Do you want others to be able to repurpose your work?
2) Do you want others to be able to see your work?
Creative Commons handles point #1 pretty well, for most purposes. The flickr (and similar) privacy settings handle point #2. At the most stringent, you make this decision when you decide to post your work online period.
Obviously, you're a lawyer and I am not. My point is simply that the issue hits both sides of self-publishing in the Internet world. Anyone who uses this medium to share speech (text, images, multimedia, hybrids thereof) should understand the intellectual property and privacy issues involved. I think that it is reasonable to use the appropriately licensed Creative Commons works for non-commercial uses, as what is why the licenses exist.
However, due to the risks involved, I would always get permission before re-purposing for commercial reasons -- whether that is through a letter asking for permission (which I have received and almost always agree to) or using stock photo sites. That's where I think that people need to be more careful.
* One problem that I do see with the CC license situation is that a publisher can change the license at will, which could cause problems for others. I see this issue as needing to be settled, likely in the courts.
Mike and Josh:
Both of you have great points.
Mike, I agree you that there is no need to blindly run from posting flickr cc photos. My post did not make that suggestion. However, the recent lawsuit does suggest that you should not blindly post photos either and expect that you will be completely covered by the CC license. We will also need to respectfully disagree on whether the bulk of bloggers have considered the right of privacy of a person in the photograph. You won't be able to convince me most bloggers have thought of that issue before uploading a photo from flickr or other sites.
Josh,
I see your point but keep in mind that the main plaintiff in this case is not the photographer but rather someone in the picture. The plaintiff's attorney understood the license issues which is why a right of privacy argument has been made. I do agree that non-commercial uses are far more unlikely to raise eyebrows. But consider this especially if you are a business blogger: Is your site for commericial purposes?
Overall, I still think bloggers, particularly business bloggers, should at least understand the issues and the potential risks.
Rush
I have to go with Rush on this one. I have been an intellectual property attorney since 1992 and a blogger since 2003. I see basically two types of bloggers. The first type, comprising the majority, are not considering copyright issues, let alone privacy issues. The second group work off a misguided hodgepodge of copyright urban legends they found on the internet.
In my experience, the second group is even more dangerous than the first. At least when the first group gets caught with its hand in the cookie jar, it repents and tries to make amends. They contact their intellectual property attorney immediately and usually avoid huge damages. The second group, however, is so steadfast in its misguided beliefs that it is often headlong into litigation before it realizes the errors of its ways.
I would be interested in finding out how the second group thinks it can determine the absence of any privacy violations with Flickr photos. Do they actually determine the names and addresses of every individual in each photo and get a signed contract from each one authorizing use of the photo? I am actually very curious about this one.
If you think the Flickr creative commons license insulates you from liability for privacy violations, or even from copyright violations in the event the poster is not really the owner of the photographs, please jot down my name and address. You may be needing it in the near future.
Also, if you could do me one more favor and ignore the cease and desist letter you get from the copyright owner or subject of the photo. Its just that I make a lot more money trying cases than I do having my clients comport with the copyright and privacy laws in the first place. And my kid wants a new Jet Ski for Christmas.
Very interesting... as always! Cheers from -Switzerland-.