Lawsuit Against Virgin Mobile and Creative Commons – FAQ - Creative Commons

Many people have asked us for information about the lawsuit prepared to be filed in Texas against Virgin Mobile and Creative Commons. The plaintiffs of the lawsuit are the parents of a student whose image in a CC-licensed photograph was used by Virgin Mobile in an advertising campaign and the photographer who took the original picture of the student and posted it on Flickr. We have prepared the FAQ below, which should answer many of your questions. We also recommend that you read Creative Commons CEO Lawrence Lessig’s blog post about the situation.

Has Creative Commons been sued?

Yes, Creative Commons has been named as a defendant in a lawsuit filed in a Texas state district court.

So what has Creative Commons been sued for?

The complaint alleges that a photographer, Justin Wong, took a picture of a student, Alison Chang, and posted it on to Flickr. The photographer posted the photo under a Creative Commons Attribution license. He selected that license from within Flickr, via one of the site’s “Set a license” pages, which gives all users the option to license their photos under any of CC’s six copyright licenses. Virgin Mobile in Australia then used the photographer’s picture in an advertisement (that is, commercially). Although the photographer licensed the photo to the public for commercial use under one of CC’s commercial licenses, Virgin’s commercial use of the picture apparently surprised him. So now he is suing CC, claiming that we 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.”

Of course, users do not have to license their photos when they use Flickr; CC licensing is a special option within Flickr for only those users who are specifically looking to grant certain copyright rights to the general public. The set of CC license options available within Flickr includes three “noncommercial” licenses, which are clearly marked as such (full page screenshot). The “Set a license” pages within Flickr also link to the Creative Commons site which explains, in detail, how the different licenses work.

Is Creative Commons liable?

No.

Do you have any authority for that answer beyond your own (some might say self-serving) views?

Well, listen to the lawyer who brought this case in his interview with CNN. At approximately the 2:16 mark of the interview, he’s asked how there could be a lawsuit here given that the photographer’s license authorized commercial use. “The commercial use has really been blown out of proportion. It’s really irrelevant to our case,” he says. “What’s important here is that Alison has a separate and independent right of privacy.”

That’s a pretty sensible answer by this lawyer. The lawsuit is also against Virgin Mobile (specifically, Virgin Mobile USA, LLC and Virgin Mobile PTY Ltd.). The complaint alleges that Virgin Mobile used a photograph of a student commercially without getting permission from the student or her parents. That claim does not involve copyright law, it involves the rights of publicity. As we say in our Creative Commons licensing FAQ, Creative Commons licenses say nothing about rights of publicity.

In his CNN interview, the photographer’s lawyer did not talk about the claim against Creative Commons.

So then are you happy?

Totally unhappy. The photographer in this case alleges that he misunderstood our license. Anytime that happens, we’re not happy. Our aim is to make this copyright stuff simpler.

So what are you going to do?

We are always looking for ways to improve Creative Commons licenses, and we will continue to make changes to the licenses when we think we’ve found an improvement that can be made.

Does this lawsuit mean that the Virgins of the world can use my CC-licensed work any way they want to?

We don’t think so. First, if like the majority of CC users you chose the “noncommercial restriction” when licensing your work, no Virgin should want to have anything to do with your work without asking you for permission first. Second, now that this lawsuit has received so much attention, if you’ve released a photo of a person under a CC license (or under no license at all), you could reasonably expect that no Virgin would consider using that photo commercially without making sure the person pictured in the photo is OK with that.

But there you go again with the word “commercially.” I thought you (or at least the lawyer suing you) said “commercial use … is really irrelevant to our case.”

That’s true in the sense that this lawsuit is not about whether the commercial use of this photograph was a violation of copyright law. But the right of privacy or publicity alleged to have been violated by Virgin Mobile depends upon the manner in which the company used the photograph. By using it as they did, commercially, they triggered the question as to whether they have violated Ms. Chang’s rights of privacy or publicity.

So did the photographer violate Ms. Chang’s rights?

We certainly don’t think so. We don’t believe any court should find that Justin Wong had violated Ms. Chang’s rights simply by posting this photo of her in Flickr, however it was licensed. Cool (as in using Flickr, and even better, using Flickr with CC licenses) can’t be a crime.