Saturday, September 22, 2007

All About the Attribution? Dump That Idea!

According to the Associated Press, a lawsuit filed in Dallas yesterday has named Virgin Mobile USA and its Australian counterpart, Virgin Mobile Australia, as defendants in a charge of libel and invasion of privacy of Allison Chang, who was unknowingly featured in an Australian advertising campaign ‘Are You With Us Or What?’. Captioned ‘Dump Your Penfriend’, the Virgin billboards and Website ads are alleged to have caused the Texas teenager grief and humiliation.

Interestingly, the suit names Creative Commons, the Massachusetts-chartered 501(c)(3) tax-exempt charitable corporation, as a co-defendant in the action, given that Virgin has been able to use the images because of CC licensing available on the Flickr website, where the image (titled ‘alison for peace’) is hosted. (It is to be noted that the image is now licensed under full copyright, although prior CC terms will persist.) The suit argues that Virgin Australia has not properly acknowledged the photographer, Justin Ho-Wee Wong, on its advertising, thereby not complying with the ‘BY’ attribution terms. As can be seen in a copy of the billboard also hosted on Flickr, there has been attribution made to the stream: Discussion has ensued about whether individuals should be informed that images are being used under CC, whether model release forms should be sought, and moral rights accrue to those photographed. Fundamentally, the mistake being made here is that this is NOT a copyright issue. It is an issue of defamation, and in certain jurisdictions, privacy. (See Lawrence Lessig's and Joi Ito's posts about the differentiation.) CC is not a scheme which contends with issues other than copyright. However, this will again be a major decision for the success of the flexible copyright scheme, as CC is alleged to be accountable for the actions of advertisers seeking to abide by their terms.

Creators may now come to question licensing under CC, as they may fear where their images ‘end up’. It is an unfortunate episode that the IP and issues of identity have been conflated. More commentary to come as Virgin Australia responds to the charges. In the interim, see more discussion on Slashdot, and on Flickr Central, where photographers are debating the merits of licensing.


Doug said...

this is also about supporting photographers and other artists who make a living selling images.

If companies can get high quality images for free why would they pay to use them?

If you support photography as an industry please do not give away your images and ask a fair price for them do not sell them for a byline of a few cents.

Rachel said...

Interesting comment Doug, and I'm certainly sympathetic to what you're saying. Creative Commons allows the stipulation of 'Non-Commercial' in their licence terms, meaning that companies still have to negotiate with the photographers to buy their images. Of course, some people want to give their works away for free, motivated by a variety of factors, from wanting fame to simply wanting to get their work out there. Increasingly, there's going to be a debate about value-adding: professional photographers still have the upper hand in having better equipment (and usually technique!) and more opportunities to photograph events with media passes and the like. It's unlikely that amateurs get to be back-stage or at the door stop interviews.