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hey that's me! no joke. i think i'm being
insulted...can you tell me where this was
taken.
Posted 11 months ago.
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where was this? do you think virgin mobile
will give me stuff?
Posted 11 months ago.
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I'm quite suprised that you were not in the
least informed that your photo was being
used!
The photo was taken on Churchill Road,
Adelaide, Australia. I believe that it's
being used as part of a national campaign -
there are a lot of other slogans and photos
being used, I think some of the others are
from flickr as well.
As for getting free stuff - it can't hurt
to try, but if the photo was released under a
CC license that allows for commercial use,
then they haven't really done anything wrong.
Virgin Mobile Australia website - www.virginmobile.com.au/
Posted 11 months ago.
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what does that mean-CC license? how did
chewywong get that license on his photos. so
virgin mobile hasn't used his photos without
his permission or anything?
Posted 11 months ago.
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When I said CC license I was refering to the Creative Commons licenses that flickr allows you to release your
photos under. Although I can't be sure about
the photo that is actually being used - it
seems that most of chewywong's photos are
released under the CC Attribution License,
which simply means that anyone can use the
image, for whatever purpose, as long as they
say that it's chewywong's photo. They have
done this with a reference to the source in
the bottom corner (you should be able to see
it if you view larger).
As for your image being used to advertise a
product - I guess it could depend on either
the laws in the country that the photo was
taken or here in Australia. If you are
offended by the caption - then I would
definately contact Virgin Mobile (or perhaps
even a lawyer) to discuss what can be done.
Posted 11 months ago.
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I found the original, and yes it is using the
attribution only licence:
Posted 11 months ago.
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Some other examples...
and maybe
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Thanks for posting the info, we were
discussing this issue the other day. Do you
think the laws that apply would be those
where the photo is published, or where it was
taken? My feeling is the former, but I am
definitely not a lawyer:)
I think it's pretty rude that they haven't
been contacting the photographers either,
regardless of the fact that they don't have
to. This is why I use the non-commercial
licence.
One more (looks like a portion of another
on the left too)
Posted 11 months ago.
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Woohoo, that's my thumb! :)
I can't really speak for everyone, but most
of my photos are licensed as CC attribution,
noncommercial, share alike. This was one of
the few where I thought "Eh, what the
heck - let'em do whatever they want and let's
see what happens!" so all I asked for
was attribution.
I'm glad I did.
-=-=-=-
As for the model discussion above .. while
I'm not a lawyer, my understanding is that
it's considered polite to always get a model
release before publishing a photo. That
being said, there is no expectation of
privacy when you are in a public (key word there) setting. That's why they
can have cameras in Times Square on New
Year's Eve without getting thousands of model
releases.
The large settlement for the coffee guy was
because the photo was taken during a modeling
shoot - not while he was walking down a
public street.
Posted 11 months ago.
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Hi,
My name is Damon Chang. I'm the older
brother of Alison, who is the girl being
depicted in the discussed picture. I am not
an attorney, but I am a film producer and my
understanding has always been that a model
release is needed for any commercial use of
images, videos, etc. (ex: "the example
of cameras in Time Square is valid, but
different because those thousands of people
are not "featured" in the
video/image, whereas my sister is the only
person featured and depicted in her picture).
In this matter, I consulted a few attorney
associates of mine. One attorney licensed in
Texas who practices in copyright law said:
"The CC license applies to the
copyrights--the rights of the photographer as
owner of the photo; my understanding is that
is does not refer to the rights of the person
depicted in the person.
I would contact Virgin Mobile, demand some
money, etc. Do it in writing. Address it to
their legal dept. The other issue is that
she is a minor, so technically they need your
parents' permission too.
I actually was involved in a situation like
this for a client; it was for a much smaller
business. The person in the photo got about
$25,0000, but her image was used for a long
time in many contexts."
Another attorney from NY said:
"I will look into it. I would first
write a "cease and desist"
letter, so if they want to throw her some
kind of offer they can at
least find her. Let me see what I can
figure out."
I'm speaking for my sister and my family in
this matter. We're going to seek out legal
counsel and contact Virgin Mobile. My sister
is just a kid in high school, and while
Virgin Mobile isn't "defaming" her
character, this is still not cool. They
should have at least let her and the
photographer know about it.
If anyone out there is licensed legal
counsel and has advice, please send it to
damon@teacherjames.com
And I'll keep everyone updated on these
blogs. Thanks again to sesh00 in Austrailia
for bringing this up to my sister.
D.
(PS: I'm putting this on both Flickr blogs
that have discussions about this.)
Posted 11 months ago.
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Hi D.
What's happened here is a complete disgrace
and I'm glad that you are moving forward with
this. My own discussion with lawyers (given
not in this field - but still) here in
Australia have tended towards your sister
being entitled to damages for the use of her
image without her permission.
I feel sorry that your sister's image was
used in this fashion, and hope that the
advertising companies involved learn that
they can't just do something like this and
hope nobody notices.
Just out of curiosity, where else have you
posted this?
It would be good if you could keep us in
the loop as to what's happening (as much as
you can) - and if you need any help you know
where to find us!
Cheers,
Brenton
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guys i have set up a group for this..
initially to compile the photos, posters and
original images. but pleae do keep the
conversation on this there...
www.flickr.com/groups/379879@N24/
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Hey Brenton, thanks for sending this to my
sister again.
The only other place I've posted on the
internet about this is the other Flickr
discussion page
(http://www.flickr.com/groups/central/discuss
/72157600541608353/).
And the only people I've spoken with are
the legal friends of mine. I'll definitely
keep you up to date about the ongoings.
So...do you think there's a lot of these
ads with other people? I guess the first
places we should notify would be Virgin
Records and the ad agency behind the ad
campaign.
D.
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Damon - virgin records is a different
subsection.
the ads in question are for virgin mobile.
as for how many ads. each billboard i've
seen has different images. there are 2 to
each billboard and on train stations there
are two billboards side by side to make up 4
panels of the ad.
the greatest way to see the extent of all
of this is on their website for the campaign www.areyouwithusorwhat.com.au
Posted 11 months ago.
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thanks everyone for your concerns on the
matter...i'd like to be as informed as
possible on this so if you can find out any
more of this issue, please let me know.
apparently what i had put on the photo was
a creativecommons.org/licenses/by-nc/2.0/deed.e
n-us
which specifically says
"Noncommercial. You may not use this
work for commercial purposes."
Posted 11 months ago.
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So, Virgin is in troubles...
Posted 11 months ago.
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Chewywong,
It actually looks like the original image
was release under the cc-by-2.0 licence,
which only really requires that a like back
to the original image is present. Images
release under this licence are able to be
used for commercial purposes without asking
the author.
You can find a link to the licence on the
left hand side of any photo on Flickr (with
the text "Some Rights Resevered" in
this case.
creativecommons.org/licenses/by/2.0/deed.en
It looks like Vigrin Mobile Australia's
advertising company has simply used the
Flickr CC Search to find images for the
campaign!
Anyway, you should definately be talking to
a lawyer about whether or not the way in
which they have linked back fulfils the
licence requirements. But even more so, you
should be talking about the fact that
aleeviation's image was used without her
consent to advertise a product.
Cheers,
Brenton
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Hi, this is Damon again, the brother of the
person in the photo.
I wanted to update everyone on what I've
been doing on my end.
I've sought out legal representation for
our family in this matter. Thanks to
"Iasnsand" and his post about
treading wisely regarding legal action. I
took that seriously since he's absolutely
right about being careful.
My attorney in Austin, TX thinks that there
is definitely enough here to do some research
into. Plus, something to do with
international law/rights and the fact that my
sister lives in US and the picture was taken
in US, means a possible course would be to
file legal action in the US instead or in
combination with Australian courts. Anyways,
he is looking into it.
Right now, he mentioned that I should try
and contact or find the other people who have
their images on these Virgin Mobile ads in
Australia. These people may or may not be
interested in what we're doing, but at least
they should be contacted.
I'm asking you guys if you have any contact
information for other people who have been
depicted in this Virgin Mobile ad campaign. I
found Scary Andrew's Flickr page, and have
contacted him. I'm hoping other people might
have information as well.
Anyway, I'll leave my email address again
in case anyone wants to contact me in this
matter. And of course, I'll keep everyone
updated on these blog posts.
Thanks again!
Damon
damon@teacherjames.com
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Hiya,
I'm Rebecca - owner of the Scary Andrew
picture. I'm going to ask for advice
regarding this too - perhaps we can have a
discussion via email. babasu [at]
yahoo.com.
Originally I felt that although contact
from Virgin Mobile would have been welcome
(i.e. asking permission to use) I didn't mind
so much because at least more people would
look at my pictures. However, the fact that
they have used images without permission of
people who are really young is outrageous, so
if there is a fight to be fought then I'd
like to join in!
Rebecca
Posted 11 months ago.
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okay...so how about some help with preventive
medicine...which CC license is the best?
I would think it's subjective to the
photographer but this really puts a scare
into me...
Posted 11 months ago.
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carwax - if you don't want your images to be
used it's best NOT to use the CC licenses.
The default license on Flickr is "All
Rights Reserved", which simply means
that the image cannot be used for any purpose
without your consent.
The CC licenses are there to allow people
to control what is done with their images,
while still giving other people some rights
to use them.
Posted 11 months ago.
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timtak - you could have used the image for a
commercial purpose if you wished. The photo
was released under a license that allowed
that.
The issue is that you would probably
(depending on where you live, where the photo
was taken, the country that the advertisement
is displayed in, etc.) be required to obtain
a model release from the person in the photo.
The issue is being discussed in the thread
linked from the image description.
Posted 11 months ago.
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Hi, I'm an admin for a group called Virgin Mobile - Are you with us or what?, and we'd love to have your photo added to
the group.
Posted 11 months ago.
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It would depend on where you are (i.e.
different countries apply different laws), in
Australia - no you wouldn't need a model
release for a non-commercial use of the
image.
Posted 11 months ago.
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For one of the BEST intellectual property
lawyers in the country who specializes in
photography, contact Ed Greenberg in New
York:
Edward C. Greenberg, PC
100 Park Ave.
33rd Fl.
NYC NY 10017
ecglaw@aol.com
Posted 10 months ago.
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Using a persons image requires a model
release, it does not matter what the
photographer wants to do with their rights. The subject of the photograph DOES
have rights regarding if they want to be
associated with that product.
You can't just take a photo of Tom Cruise
walking down the street and make a billboard
"Come Cruise with us". Yes he is in
public so it is ok to take his photo, yes the
photographer is allowing you to use the
image, no Tom did not authorise you to use
his image in that context.
It does not matter if you are Tom Cruise or
not, the same rights apply to everyone.
Virgin are in deep deep do do.
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Folks, as a professional photographer
involved in the advertising world, I just
have to comment on this situation.
People are on the right track here,
"aleeviation" should be seeking
legal representation and I can second the
suggestion of Ed Greenberg in New York as one
the absolute best to call on.
Now to the point I want to make: people
allowing commercial usage of their
photography on Flickr are suckers being taken
advantage of.
Hear me out here. Photography is a great
and rewarding hobby but it's also a serious
business for some folks. Aside from the legal
problems that this photographer is going to
have from making this image available without
a model release, he is out far more money on
lost revenue that his photo has already
earned for Virgin Mobile.
When Host ad agency was hired by Virgin to
do this campaign in Australia, they were
given a budget in the $1M+ range without a
doubt. Why not save some of that money by
going with some cc-licensed imagery? Why not?
Someone will be thrilled to see their
photograph on a bus shelter -- we pay them
$0, they have cache, it's a win-win!
Don't think for one minute that these
images do not have value -- it doesn't matter
if I took it or if my grandmother took it --
if Virgin Mobile wants to spend millions to
show and promote an image, well aware of the
revenue such marketing creates, then that
image has plenty of value.
How much of that ad is made up of the
image? That copy means little without the
photo. Would you say the photograph is worth
at least 5% of the total media buy? That
translates to $50,000 of a $1M media buy.
This media buy is more than that; that image
is worth at least 10-15% of the media buy.
Our photographer has traded quite a lot of
money to have the honor of his image being
(ab)used by a multi-billion dollar
corporation.
Virgin might be in "deep do do"
as a previous writer says, but with all the
money they've saved on photography through
this campaign, they will probably break even
on fees for the attorneys they keep on
regular retainer anyway. I can guarantee
those attorneys will point to previously
established laws in the US and elsewhere that
the photographer is responsible for obtaining
a model release, and is in the wrong for
making them commercially available without
one. Virgin won't lose money on this, they
are in business to make money -- the
photographer who transacted commercially for
no money, he will come out of this in serious
debt.
People: if you are going to conduct
business with your images, remember that is a
BUSINESS. There are people who make a living
doing this, and we compete more and more with
people who aren't interested in making money
for their work. Companies are very happy to
increase their revenues by profiting off of
your work and your investment in your photo
gear. Respect the value of what you are doing
-- don't be taken advantage of.
Posted 10 months ago.
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Watermark everything you post to Flickr and
post SMALL (as in photoshop level 5).
Flickr strips metadata upon upload so the
images can not be tracked back to the
copyright holder (you) The images basically
become orphan works once they are downloaded
and shared around. orphanworks.blogspot.com/
Protect your work.
Chuck
Posted 10 months ago.
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I should agree with Outforawalk and Chuck.
All Rights Reserved is my default cause of
those reasons.
Anyway, Virgin Mobile probably has a big
legal issue now. I visited the campaign web
site and all pictures came from Flickr...
Easy to win in court, at least here in
Brazil.
Posted 10 months ago.
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Okay, I haven't read the other discussions
linked above, and maybe I'm a bit late to
this party. But there are TWO issues here,
one being COPYRIGHT and the other being MODEL
RELEASES.
I don't really know anything about CC
licenses, but assuming that Virgin is in
compliance with the CC licensing of that
particular photo, there is no issue here.
Model releases are another thing entirely.
It is the end-user's responsibility to ensure
that a model release exists for all depicted
people for all commercial uses (i.e.
promotion, advertising).
In general, editorial uses are do not
require a model release (news, books,
magazine articles, etc).
Posted 10 months ago.
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I am really amazed by the number of people
posting their photos on flickr, people who
probably have hopes of becoming professional
photographers one day, who know little or
nothing about copyright. Knowing how many
companies have used flickr photos for their
ad campaigns, you still have no idea what
license you've assigned to your image? That's
insane to me.
And if you're going to be involved in a
lawsuit, it would be smart to remove all of
your comments concerning the issue from a
public forum.
Posted 10 months ago.
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This give me some thoughts. We need to
carefully choose the right Creative Commons
Deed. In my case, I have picked
“Attribution-NonCommercial-NoDerivs 2.5″.
Posted 10 months ago.
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The photograph that was used in this ad is
licenced as cc-by-2.5; this means that it can
be used commercially and derivatives can be
made of it (such as the crop and flip Virgin
performed on the image). The condensed
license text is "You are free to copy,
distribute, and transform the work ... to
adapt the work ... you must attribute the
work in the manner specified by the author or
licensor (but not in any way that suggests
that they endorse you or your use of the
work)". They are entirely within their
rights to use it in terms of *licensing*.
Note especially the extended legal text:
*Licensor hereby grants You a worldwide,
royalty-free, non-exclusive, perpetual (for
the duration of the applicable copyright)
license to exercise the rights in the Work as
stated below:
**to reproduce the Work, to incorporate the
Work into one or more Collective Works, and
to reproduce the Work as incorporated in the
Collective Works
**to distribute copies or phonorecords of,
display publicly, perform publicly, and
perform publicly by means of a digital audio
transmission the Work including as
incorporated in Collective Works.
[above are only extracted sections, not
entire text]
This means that Virgin are entirely within
their rights to use the image in an ad (the
Collective Work), to display the ads
publicly, etc; they are attributing the
author with a URL at the bottom of the image,
and thus are respecting the
"Attribution" aspect of the
license.
As for model releases, that is another
matter. I am only knowledgeable in the area
of CC licenses, not model releases, so I
won't comment on that aspect.
However, personal photos (in my opinion)
should not be licensed freely if you don't
have permission from the people pictured. If
you look at a photo and think "I
wouldn't want this on a billboard" or
"The person in this photo wouldn't want
their picture on a billboard", license
as All Rights Reserved. It avoids messy
situations such as this.
Do realise, though, that if you license
your image as
"Attribution-NonCommercial-NoDerivs
2.5" images can't be used on other
websites. I've had three of my images used on
news articles or websites, which is exactly
why I licensed them as
"Attribution-ShareAlike-2.5", or
cc-by-sa-2.5. This license also allows them
to be used on places such as Wikipedia, where
they significantly contribute to articles and
are seen by millions of people (if the
article is popular).
Posted 10 months ago.
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Do you think that it is probably safer now to
place an "All Rights Reserved"
notice on all our photos?
Blog Me
Posted 10 months ago.
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Maybe you can help me here. But in my opinion
the only person who is in real trouble is the
photographer, not Virgin. The Photographer
provided this photo for commercial usage
without asking the model for permission. So
the photographer has done the mistake in
first place.
Virgin is in charge to double check the
situation of the photo as well, so they done
a mistake too. Personal right are above
property right. The photographer should be
hold responsible for offering this photo for
commercial usage.
Correct me if I am wrong.
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Maybe im wrong but Flickr is one of the most
view website in the world and at the same
time the best free imagebank in the world.
Most of the people like me just post pictures
to get comments and to show the work and i
think this is the main thing in flickr.
Anyway a lot of people come to flickr to get
good res pics and to use it on works because
they dont have water mark and because its
easy to get download them without asking.
Conclusion is like going to a store that
doesn't have the alarm or any security system
only a sign saying you can or can't steal.
One thing is should Fickr protect the
members, or should the members use only
flickr to post thumbnails or trust on the
copy rights thing?
I'm a designer and i know the importance of
copy rights and sometimes i have my
questions, but does the common people that
post their pictures on flickr should know all
this stuff. Should Flickr help the users to
protect their work or become a IMAGE BANK
website?
Just some questions that i have and some
problems that i see on this thing of
copyrights of pictures or any other stuff on
internet....
Posted 10 months ago.
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I completely agree with several comments here
that the Advertiser and also potentially the
Ad Agency are in danger of serious liability
in a lawsuit in either US and/or Australian
courts from the persons depicted.
I also suspect that all of the
photographers, though not the deep pockets
here, might also have some danger of lawsuit
liability from the persons depicted and
mildly defamed by this ad campaign.
From my reading, this creative commons
license gives absolutely zero protection to
the photographer in this situation. So,
photographers might want to think long and
very hard before posting non-released
photographs under these CC licenses
regardless of how well you know the person
depicted. Property Releases are also
sometimes needed as well.
I second the watermarking suggestion and
all the advice against CC licensing as well.
Copyright, and All rights reserved, is your
best friend, if you ever want to make a buck
with your photography. Orphan works
(mentioned above) will probably never earn
you a dime without seriously difficult and
generally unlikely legal wrangling.
Lawyers do love slam dunks and this case
sure looks like one to me. Hopefully, this
case will make a group of people some serious
money and can be a cautionary tale for both
photographers, and skinflints, those ad
agencies and companies out to save a buck up
front with "free" but legally
unsafe imagery.
Posted 10 months ago.
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Guys guys, guys! All valid arguments about
the use of the discussed image above but if
you take a step back for a second ... you
have given out a lot of information about the
girl in the discussed picture that an
unsavoury person could use to do possible
harm to the girl. I suggest that this
discussion should be removed or at least the
personal details. People get caught up in
these types of community website and don't
think before they speak.
Posted 10 months ago.
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johnwarde, if you site a particular post I
will delete it upon request of those
involved. Before then, I don't really want to
tamper with the public discussion of
something that is still up in the air.
everyone else, read the forum post linked
to in the description of the thread (just
jump to the second page) for some proper
explainations of the laws involved. Lets not
foget that this is happening in Australia -
most likely outside the jurisdiction of any
US laws.
As for those talking about the photographer
being to blame, it should be noted that the
CC-BY-2.0 makes no claim that a model release
has been signed, or that the image is
actually fit for commercial use. It simply
states that there is no restriction against
commercial use. The licence is on the
artistic nature of the photo, not what's in
the photo.
autodetailer, I really like your photo
stream - and yes, if you don't want your
images to be used without asking you first,
then All Rights Reserved is the way to go.
The CC licences are there simply to allow you
to easily make your photo available for use,
if that's what you want to do.
Posted 10 months ago.
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Everyone....never ever be flattered that a
photo of yours is used commercially, whether
it be in an editorial publication, an
advertising campaign or any other form of
commercial activity.
Flattery will expose you all to serious
exploitation and financial risk.
Your photos have a commercial value...don't
give them away and if you choose to ignore
this advice than at the very least ensure you
fully understand the terms and conditions
(contract) that you automatically agree to
when handing over your images.
You must also understand the laws of libel
and defamaton which may arise from the
mis-use of images featuring people...the
featured person can sue YOU!
There are many instances (photo contests,
websites calling for free images, magazines
etc) where the photographer is made to
indemnify the user against any law suits
arising from the use of their image
How about that...they use your image for
free, maybe even sell it on to third parties
for a profit, and you pay for any law suits!
Set your licenses to "All Rights
Reserved" and simply enjoy Flickr
without the risk of exploitation, without
the risk of expensive law suits and without
effectively handing over cash to an already
rich corporate
My 2 cents worth
Posted 10 months ago.
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Hi, this has been an interesting read, and I
am probably coming in far too late on the
debate, but I am an Aussie lawyer that
specialises in this stuff.
Yes, what Virgin did is wrong under
Australian law.
Whether or not use of the photo constitutes
a breach of copyright depends on what the CC
licence says (I've not looked at the CCL but
if it says any use, well, doh, that means any
use).
However, everyone is quite right in asking
about the model release. We have a thing here
in Australia called passing-off which is,
essentially, the right to protect yourself
from falsly endorsing somebody else's
product. By showing the girl the suggestion
is that she is endorsing Virgin Mobile.
Its also arguable that there could be a
breach of privacy element to it (expanded by
the recent UK case with Michael douglas and
Catherine Zeta Jones) but that would be a
harder case to make out.
Most of the other images are probably less
likely to be a problem for Virgin.
I am kinda surprised that Virgin would be
so stupid as to do this and not see the
consequences (nor ask any of their army of
lawyers what the implications might be),
which makes me wonder whether you are all
playing into their hands by threatening legal
action - perhaps this is the beat-up and
extra marketing they are looking for?
Court case in the US? are you insane? How
much money do you want to burn? Get a savvy
Aussie lawyer to send a letter and make a
demand - work out what you want (and for god
sakes talk to your parents about this first)
and then contact virgin and start
negotiating.
Its as simple as that.
Posted 10 months ago.
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There is a Photographer's rights website written by an Australian solicitor that
covers rights in New South Wales, Australia,
although he does cover some differences in
the laws of other states. He rights on Virgin
and these photos for the commercial case
study under the Commonwealth Trade Practices
Act.
Posted 10 months ago.
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Chuck Goodenough opined a couple of weeks ago in this thread
that Flickr strips metadata on upload. That
is simply not true. Flickr strips metadata onimages it resizes but not the original. It does keep the
metadata under 'More Properties" where
it can be seen by anyone who cares to look.
Check my photostream The small images have no metadata, however
the original has intact metadata.
Posted 10 months ago.
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So, what you're saying is that you are
bothered that your photo being used although
you released it unde CC licence ?
My question is, why did you release it if
you don't want it used and abused? That's the
whole idea about CC. The fact that
information, music, photos, etc, are free for
anyone to take, modify and make something
nice with it, that hopefuly makes you proud
too.
Sure, it may not be the case with your
photo, but I'm sure Virgin can afford a few
hundred $ for a picture, they weren't doing
it to save a buck. To me, what you are doing
is wrong. You released a photo and then you
press charges. It's like I'd give you a
present and then call the cops saying you
stole it.
My point is: CC is not a trend, it's a way
of fighting back the money-oriented world we
live in by giving stuff for free to the
world. If you don't want that, just Rights
Reserve it and that's that.
But I do understand your quest to get
something out of this all. 30k$ is not bad.
Hell, get all they got as far as I care.
Good luck.
Posted 10 months ago.
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Im hazy as to WHAT the correct license on
Flickr stops this from happening! I want it
applied to ALL my shots so if they are used
at least I get consulting.. Copyright is FAR
too gray I think..
Posted 9 months ago.
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Solidox: The issue is not the cc license the
issue is the model release. The cc license is
saying i don't mind if you use my (the
photographers) work for whatever purpose you
se fit. It is to to with the copyright of the
work ONLY. Model releases are there to
protect the rights of anyone identifiable in
the photo. If a commercial company wants to
use ANY photo to promote a product, it is
their resposibility to ensure that they have
model releases for anyone in the photo. This
is completely separate from the issue of the
copyright. CC license adresses only the
copyright and not the model release.
I think what really needs to come out of
this issue is for flickr to add a "model
release available/obtained flag",
separate to the licensing flag. This should
always be marked by default to be false and
then if someone wants to explicity state that
they have a release then they set the flag.
Then any commercial entity wishing to use the
photo then has it explicitly stated to them
whether they still need to obtain a release
for anyone in the photo or not, and in either
case they should contact the photographer to
either get the already signed release, or in
the case where there isn't one to track down
anyone in the photo to try and obtain one.
Kris_Syd: If you don't want it being used
commercially, choose the non-comercial
option. If you don't want anyone using it (eg
not-for profit/individuals etc as well as
commercial) leave it all rights reserved.
Posted 9 months ago.
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JBimages said above "Chuck Goodenough
opined a couple of weeks ago in this thread
that Flickr strips metadata on upload. That
is simply not true. Flickr strips metadata on
images it resizes but not the original. It
does keep the metadata under 'More
Properties" where it can be seen by
anyone who cares to look. Check my
photostream The small images have no
metadata, however the original has intact
metadata."
This is great news for the original!
Thanks Jbimages for pointing that out. But it
still depends on people entering the info.
AND the remaining sizes are Orphaned and if
used on a blog or wherever they can be taken
again and again with no record of who the
copyright holder is if there is no remaining
meta record or watermark.
Flickr is great fun but beware, the images
you upload can easily become orphaned with no
way to effectively trace copyright ownership.
ONLY THE ORIGINAL SIZE HAS METADATA &
THEN ONLY IF YOU ENTER THE INFO BEFORE
UPLOAD.
Posted 9 months ago.
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As an example, Flickr is using this image
(sans metadata) to advertise it's new
uploading features
Flickr blog
Source of Flickr blog image without metadata
If someone chose to swipe the image
directly from the blog page instead of
clicking in it to locate them, the owner info
would be gone! No watermark, no metadata.
I understand the Flickr agreement allows
them to use images for any reason but I don't
think they will be using mine because of my
watermarks. Chuck
Posted 9 months ago.
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It's one thing for them to use the photos
without notifying the photographer, but the
captions they put on the photos are almost
always insulting. Some refer to the subjects
as slutty, or smelly... this one comes off a
bit racist.
Posted 9 months ago.
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racist? You got to be kidding me.
Since the brother is no longer posting, I
assume the lawyers told him to keep quiet. I
wonder if we'll ever know the outcome.
Posted 9 months ago.
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no, They took a picture of an Asian girl in a
stereotypical pose and imply that she must be
from a foreign country (pen friend/pen pal)
then suggest that whomever should dump her
as if the phone they are selling makes this
girl obsolete.
So no, I didn't say it was a bit racist for
a laugh. Just pointed out that I think this
is questionable as advertising.
Posted 9 months ago.
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“Hi, I just wanted to update people on the
situation with my sister's photograph.
We have retained legal counsel in the US
and have sent Virgin Mobile US and Virgin
Mobile Australia a formal demand letter
requesting compensation for the use of her
image in these ads. I feel that it should be
fair that they compensate her since they used
her image for commercial purposes.
Here's my email address in case any other
photographers or models from the ads want
more information:
damon@teacherjames.com
Any legal queries can be forwarded to:
Ryan Zehl
c/o Fitts Zehl LLP (Houston, Texas)
Thanks, I'll try keep everyone updated as
we go.
Damon”
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Why is getting attourneys for a legal battle
the first thing on the mind of many
Americans? Everyone knows it's the reality of
the situation when it happens so much more
often than any other stereotype. It's a shame
sometimes.
In Australia, we'd have a laugh and take
the free 15 min of fame for granted. I'd be
all too happy to get a snap of me put up by
AT+T, Sprint or even Virgin in the US :) As
soon as I get some happy snaps uploaded at
some point, fingers crossed.
cunparis is on the mark too - beyond a
reference to foreign-ness of foreign penpals,
there isn't a spot of racism there. Anything
racist in Australia is dumped quickly
anyway... a slight bit can kill a campaign.
He's also on the mark with Damon keeping to
what the lawyers say - why else is the last
post he made the only one with speech marks
at both ends? Out of an email IMO.
All I can really think is that this will be
an interesting and necessary decider on
creative commons for sure.
I'm not supporting either party, because
it's easy to assume as a bystander. GL to
both sides of the argument - the Chang
attourneys and the VM Aus lawyers have a
toughie here.
Posted 8 months ago.
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Get a Grip! It’s a cute pic and the slogan is
NOT derogatory. It’s embarrassing how greedy
some people are. Most people, normal people,
would think it is really cool to get such a
cute pic of themselves on a billboard (clean
content, obviously). But not you—you want a
big fat check for doing nothing. I hope they
pull your pic and compensate you
appropriately, i.e., $0.
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Hi....
I'm not sure what people are saying is
derogatory about the Virgin Mobile
advertisement?
It is a cute girl holding up a
"V" (V for Virginmobile), and it
says dump your pen friend...promoting free
virgin to virgin text messaging....the joke
being no more writing notes/letters, because
texting is now free...
i think it is a cute ad with a cute
girl.....if the photographer screwed up by
placing the wrong "restrictions" on
the photos use, well, next time pay more
attention......and lastly, if you don't trust
your friends to use the proper restrictions
on photos of you, then don't pose for photos
for them....Best wishes....
If I am missing something I would like to
understand.....is it the advertisment that is
insulting? if so, how? Or is it the fact that
they used this advertisment with out seeking
direct permission of the photos main subject
(you)?
Posted 8 months ago.
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It seems the girl in the photo may be able to
pursue a lawsuit against the photographer.
It is the photographer who took the photo,
posted it online with out the
"models" consent to unlimited
commercial use. tsk tsk tsk....
Posted 8 months ago.
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Instead of contacting lawyers, perhaps they
should be contacting modeling agencies for
this girl....
this would be much more productive....
Posted 8 months ago.
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Agreed, it's the photographer's fault for
posting it under that kind of license.
Besides, I don't really see what's so
insulting about the ad. Is it the word
Virgin?
Posted 8 months ago.
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Franky, if anyone should be signing a model
release, it should be the guy who took it.
And why don't you take your 15 minutes of
fame? Show your friends the photo, and go
'Hey thats me!' Your reputation is only
getting worse, by immediately choosing the
'sue' option.
Suing them won't make the ridicule go away,
it will just make the ads go away.
Oh by the way, your Virgin Mobile lawsuit,
made the Associated Press. So there goes a
little bit more reputation.
www.msnbc.msn.com/id/20896643/
Posted 8 months ago.
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Actually if this is to take place in an
Australian court , Chewywong will have to be
careful of a counter claim by authorities
against himself for photographing a minor
without written or parental consent in a
public place. An act that is currently
illegal under Australian anti-peadophile
laws. The fact that he then publicly
dissemintated such photos could also bring
him some grief.
Personally I think the whole thing is a
crock of shit, the campaign was not defaming,
and while maybe they should have asked, the
fact they didn't will test CC as a copyright
law especially when posting pictures of
people. And while the courts will probably
award her some money, I bet Virgin Mobile
will then go after Chewywong for his failure
to get release and miss authorisation of CC.
The question is, if they apologised and
took down the posters, would they family let
it lay...or do they want the money?
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SHOW ME THE MONEY!
... of course it's about money.
Posted 8 months ago.
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In the end, we all get to pay just that
little bit more because of the USA's
litigious society. I'm sorry to say that
Australia will probably follow like we have
with most other things. Can I sue for the
existence of rap or hip hop?
Posted 8 months ago.
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hey, i just read this issue on msnbc.com and
i've also read all the posts on here.
in my opinion, i agree with a previous post
by 제프리 (xnine): "no, They took a picture
of an Asian girl in a stereotypical pose and
imply that she must be from a foreign country
(pen friend/pen pal) then suggest that
whomever should dump her as if the phone they
are selling makes this girl obsolete.."
when i first saw the ad, i actually thought
the exact same thing. it did come across as
stereotypical and a bit insulting. i also
agree it was wrong that it was used without
her permission. i could see why the girl
would be upset and embarrassed.
asian pen pals? asain girls flashing the
peace sign? seemed stereotypical to me. plus,
virgin to virgin? kinda insuates that young
looking girl= virgin. might as well say,
"dump your
habitually-peace-sign-flashing asian pen pal
and starting texting."
i put myself in her position and i would be
bothered too. i may be wrong about the whole
thing, but thats what i picked up upon first
seeing it.
Posted 8 months ago.
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wow.... this is crazy. just catching up
with this. found this link on
lightstalkers.org (site for professional
photographers who can't stand issues like
this)
www.smh.com.au/news/technology/virgin-sued-fo
r-using-teen...
Posted 8 months ago.
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@ thedogsname: Her 15 minutes of fame. If
she's so concerned about her image, why would
you draw more attention to it? Unless, of
course, you were in it for 'monetary gain'.
What a joke...
Posted 8 months ago.
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sue sue sue, no wonder america is univesally
hated.
Dont post your pic on the web if you want
no one to see it
Posted 8 months ago.
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I don't understand why this has come back to
"America" as a whole. This is the
issue of one girl and her family, not the
nation suing a company. It amazes me how
people are so quick to judge others even
though we aren't in her shoes, and don't know
exactly what happened. Don't think that just
because one family thought this was the right
thing to do that all Americans would agree.
Everyone is entitled to their own opinion, no
matter where you live!
Posted 8 months ago.
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psnedal - I don't think the issue is that
people can see her picture. If you read the
posts above - the issue is that she is a
minor, that Australian copyright laws have
been unambiguously broken, that she has been
portrayed endorsing a product that she may
not endorse and has been embarassed by the
context that the advertising portrays her in.
I do think being sued by a criminal because
they fell on your knives while breaking into
your house is ridiculous. I think suing
because of the reasons this young girl is
suing Virgin is actually OK. Virgin can
afford to use paid models who agree to be
portrayed in this way ( as well as paid
photographers) for work like this. It's more
than a bit dodgy in my book.
Edit - whether or not the laws span the
nations involved is something for the lawyers
- one of which I am not. I would be just as
upset as she is if someone took a photo of me
from a website and used it to advertise, say,
cigarettes. And I would consider legal action
could I afford it. At least to have my face
removed from endorsing a product I don't
necessarily endorse. Anyways...
Posted 8 months ago.
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Someone remind Texas that our Prime Minister
went to war with your President.
Posted 8 months ago.
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I agree that the ad agency should have gone
beyond the legal minimum and informed the
photographer they were using the picture. And
they should have complied with laws about the
permission of the model to endorse the
product.
In big Australian cities an Asian face is
not usually read as 'foreign'. She's just a
happy young girl-next-door type. Exactly the
sort of person that Virgin mobile wants to
appeal to. No racism in this.
It's clear from some comments above that
different people see racism differently.
And on the point about American lawsuits --
Australians usually roll their eyes when they
see examples of Americans taking out
lawsuits. Here's another one. So, yes, the
actions of an individual family DO reflect on
the reputation of the country as a whole.
I REALLY hope that Australians don't become
as litigious as Americans.
Posted 8 months ago.
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I just read the news article on msnbc.com
about this lawsuit. It is very interesting to
then find this original discussion that lead
to that story.
Since a lot of people who read this are now
well versed with licensing laws let me ask a
question.
How can the paparazzi take photos of
celebrities and sell them to various tabloids
without the consent of the subject/model?
Posted 8 months ago.
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This isn't about American litigiousness.
Bottom line is that Virgin Mobile is using
these images to promote their product in
order to make money. If you find it legitimate for Virgin to
user these pictures to make money, then why
is it wrong for the "models" to
expect to make money as well. While you might
find the publicity alone to be enough
compensation, others want a share of the
profit gained from their images.
Posted 8 months ago.
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Now it's on News.com.au
www.news.com.au/business/story/0,23636,224567
48-462,00.html
A photo of an Asian girl isn't raciest.
They are everywhere here! Hell.. half my
friends are asian!
Yes, we all hate how much Yanks
(read:Americians) sue, but Virgin are being
cheap biarches, and soon there could be no
paid models! Who would we look to to make us
feel bad about ourselves then!
Posted 8 months ago.
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By the way, when I first read the story I
thought it would be some ugly nerd girl...
making fun of the pun "Virgin"..
but aleeviation is HOT HOT HOT! When ur mega
rich, come to Australia and we can go have
some tea and some stimulating conversation.
Posted 8 months ago.
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@Karlman, there is a difference between using
an image to sell a product and selling an
image. You need a model release (consent) to
use a persons image to advertise or sell an
product, but you can sell a photograph of a
person or a magazine with a photograph inside
without consent. - at least this is my
understanding.
Posted 8 months ago.
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One would also have to decide if the girl is
legally a model. Is she in fact a young woman
who's livelihood is threatened by Virgins use
of the image, and/or who's primary source of
income is her "looks"?
If so, then did she in fact recieve
compensation and offer a release for the
original photo? Or is Chewywong also in a
position to be libel for damages and misuse
of said image.
I agree with the legal advice above, thei
will never get to court if the young lady's
legal counsel has any sense, it will be
settled for an undisclosed amount, a
retraction, and an apology. Virgin will laugh
its way to the bank with all the free
publicity, the young lady will now go to
college and risk being labelled the "the
virgin girl" so will lose her anomymity
completely (a contentious issue in itself
given that the ad campaign was not brought to
her attention by anyone who knew her
directly) and the courts and media buzz will
move on to the next "big deal"
If the young lady really does decide to
press ahead with a court settled matter
instead of an out of court settlement, then
Virgin will bring its retained heavy hitters
to bat...and while I do not doubt she will
still win, the tarnishing effect on her, her
church and her church counselor may
ultimately not prove worth it and in fact do
the very thing she is so opposed to.
Posted 8 months ago.
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Virgin were being cheap - using
"free" photos. But it's wrong,
legally and ethically, to use the photos for
a commercial purpose and others have
commented about the "endorsement"
factor and the difficulties incurred by the
experience damaging Alison's reputation and
exposed her to ridicule from her peers and
scrutiny from people who can now Google her,
as the family alleged in the lawsuit.
So Virgin should simply make a reasonable
settlement offer, and to anyone else it has
troubled, and learn its lesson. Next time
maybe they will pay models and not try to be
so cheap!
Posted 8 months ago.
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www.smh.com.au/news/technology/virgin-sued-ov
er-photo/200...
I actually think the opposite - give it 3
months, everyone will forget about it.
Everyone always does. How celebs become
d-grade then fade into existance? !!
If its worth anything, I think its a great
photo. You got a great smile!
Posted 8 months ago.
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Hi, we've obviously been keeping up with the
news and with these boards. I'm not going to
post often because I shouldn't. But I do want
to put up some responses to a few of the
previous posts.
Some might think that we are suing for
money. I just want to bring up these points.
1. Virgin Mobile and the ad company did
something wrong here. They took ordinary
people's photographs, put them up in an ad
campaign, and didn't notify anyone. I've
posted before about what possible thinking
went through the heads of the ad company and
managers when someone MUST HAVE asked,
"...shouldn't we notify these
photographers that we're using their
picture?" And someone at their companies
said No, and had a justification for it.
In our opinion, that is wrong. Before
bringing on legal representation, I had sent
them a complaint letter, asking them to
explain the situation. Before filing suit,
our attorneys sent them complaint letters to
explain why they acted as they did. And
everytime back, their "corporate"
response was: We did nothing wrong. We acted
in the faith of the CC License. We are on the
side of creativity (even the ad company
started a new thread on FLICKr saying they
are just creative, etc.).
In my opinion and our opinion, this is not
adequate by any means. It's a big company,
sidestepping normal procedure (like notifying
people) to save money. Justin didn't
actively seek out Virgin to sell his photos,
just like 100 of the other user images they
pulled, didn't actively seek out Virgin, or
any commercial entity.
2. If they are genuiely HONEST about trying
to promote creativity among photographers, ad
campaigns, etc. Why wouldn't they contact the
photographers then? The CC License 2.0
stipulates that you need to attribute the
photographer and location of the photograph.
Just putting someone's Flickr page on the
bottom left hand corner doesn't attribute the
photographer's name OR the location of the
photograph. If they really wanted to help
photographers and spread the word, putting
"image by CHEWYWONG on FLICKr"
doesn't really give a lot of exposure to
Justin or his photography
"talents", does it?
They made a clear decision to bypass
notifying photographers (even though CC 2.0
talks about correct attribution) and of
course they didn't contact anyone within the
images.
3. She's a minor. And she's a girl. And her
image was FOUND in Australia. By a complete
stranger, who just happened to see it at a
bus stop. Wouldn't that make you feel
uncomfortable?
She didn't consent to this. Yeah, it's
possible my sister might hav |
