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| agoode, "Sleeping", http://www.flickr.com/photos/explosivebolts/60622410/, by agoode |
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Emma Carroll and Jessica Coates
It’s Friday afternoon. That one drink at lunch turned into more than a couple, resulting in an emergency nap under your desk back at the office. The boss need never know… but unfortunately for you it’s 2007, the digital age. Someone in the office that day had a camera, and unbeknownst to you that photograph of you snoring under the computer was posted on the Internet and picked up by a telecommunications corporation to use in their national advertising campaign. Busted.
Recently billboards were put up across Australia displaying Creative Commons licensed photographs from the Yahoo7 Flickr website as part of Virgin Mobile’s new online and outdoor advertising campaign ‘Are you with us or what?’ The amateur photographs were branded with ‘comical’ captions in what Virgin mobile stated was “part of an approach designed to reject clichéd advertising in favour of more genuine and spontaneous shots”. Controversially, Virgin did not inform the photographers, or the people in the photographs, that they were using the images.
This campaign has gained a lot of attention in the media with it making the front page of news.com, several prominent broadsheets and the Australian Broadcasting Corporation’s popular youth radio network, Triple J. It’s also led to a lot of online discussion, both on Flickr and on individual blogs about the legal and ethical implications of the campaign.
While at least one of the Flickr photographers, Qole Pejorian (aka Alan Bruce), is “excited” to see his photos used as the face of Virgin, some of the other photographers and subjects of these photographs didn’t find the ads quite so humorous. Particularly outspoken has been the brother of a 15 year old girl, who is featured in a photograph with the caption “Dump your penpals”.
From a Creative Commons licensing standpoint, there are a few legal issues to consider. If the photographs Virgin used were licensed to allow commercial use and the company has complied with any other licence restrictions (ie Attribution, No Derivatives, ShareAlike) this kind of use would seem to be permitted under the CC model. However, there are some questions about whether Virgin has followed these steps. At least one of the images used by Virgin appears to currently be under a licence that doesn't allow commercial use - though it's not clear whether it was under a broader licence in the past. The same photo also has a ShareAlike requirement, and there's no sign of Virgin badging the billboards ShareAlike.
More generally, it's questionable whether Virgin's attribution satisfies the CC requirements. They have included a link to the home page of the photographer's Flickr account in the bottom corner of both the billboards and the web versions of the ads, but they haven't directly named the photographer, linked to the image itself, or referenced/linked to the CC licence the photo is under - all of which are part of the standard attribution required by the CC licence. And, at least in Alan Bruce's case, they haven't followed clear attribution instructions on his Flickr profile. Although the licence allows users to vary these requirements when it is 'reasonable', it is questionable whether Virgin had reason not to give greater attribution in this case. And you would think that, from a risk management point of view, it would be worth implementing best practice for a national ad campaign.
There are also other legal issues that need to be considered. Have Virgin breached the moral rights of these photographers? Accurate attribution is one of three moral rights required under Australian copyright law – if the attribution used in the campaign is not sufficient for the CC licences, it is also possible that it does not satisfy this legislative right. Furthermore, by adding potentially insulting captions, have Virgin breached the photographers’ moral right of integrity? This is more questionable, as the captions are aimed at the subjects, not the photographers. But moral rights law is still in its fledgling stages in Australia, with the first case to award a moral rights infringement only decided in December 2006, so it is possible that a cause of action may exist here.
But public discussion of the issue has really focused on the question as to whether Virgin should have obtained model clearances from the people who are identifiable in the photographs. Although it seems to be industry practice to do so where a photograph is being used for commercial purposes, there is a real question whether this is a legal requirement in Australia. Section 53 of the Federal Trade Practices Act does prohibit commercial conduct that misleads or deceives consumers into thinking a particular person has purchased or is affiliated with a product. However, existing cases in this area involve a person who is a celebrity or at least well known to the public, where it is clear that consumers were falsely led to believe that person was endorsing the product. These ads, with their deliberate 'amateur' style and sarcastic bylines, don't really imply endorsement – if anything, they make it clear that the person is an unwitting participant in the joke.
Defamation could potentially be raised as a remedy if publication of the photograph impaired the reputation of the subject. However, you would need to prove that the people involved had a public reputation that had been lowered, exposing them to hatred, contempt or ridicule, or causing them to be shunned or avoided. After all, defamation protects reputation and social esteem, not self-esteem.
In response to these criticisms, Virgin appears to have removed most of the photographs in which particular people can be identified from their website and replaced them with related but less controversial images. For example, one ad using the line ‘People who talk in lifts have bad breath’ which original pictured (you guessed it) a group of people talking in a lift now has a picture of an overflowing ashtray. Whether Virgin has taken the same step for the billboard advertisements in unclear.
Some commentators have suggested that the failure to deal with the issue of model clearances represents a flaw in the CC licences. However, the licences make it very clear that they merely provide copyright permissions, and that they do not purport to deal with any other area of law. Due to the vast number of uses that can be made of CC licensed material, and the vast number of laws that can come into play in these uses (eg defamation, privacy, competition) it would be impossible for the licences, or the person issuing the licence for that matter, to definitively cover all potential legal issues in releasing it for general use. There is arguably an onus on the person or company making use of the work to identify any laws their particular use might breach, and to make an effort to obtain any additional permissions that are needed - particularly if their use is large-scale and commercial.
Commentators have also questioned whether CC is educating its licence users enough about the consequences of selecting a licence that allows commercial use. And CC most certainly has a duty to try to assist people to understand the implications of their licence use. However, of all possible criticisms, surely Virgin’s campaign cannot be said to be controversial on this basis – surely a person who licences their material to allow commercial use should have been aware that their image might end up in, well, a commercial.
What this incidence has really highlighted is the ongoing difference of opinion as to the ethics of and motivations for CC usage. Some people have argued that this kind of use goes beyond the purpose of the CC licences. Even if they had no legal duty to do so, should Virgin have notified the photographers that they were planning on using their photos in such a widespread commercial campaign? This might have been a good risk management strategy, and would probably have helped them to avoid some of the public criticism they've received.
On the other hand, there is also an argument that this is exactly why CC has non-commercial licences - so that people can choose to share their material even with large corporations if they wish to, without requiring them to get extra consent. As Alan Bruce puts it:
the thing about the CC Attribution-Only license is that you are telling other people, "go ahead, use this picture as you wish, just credit me," without any requirement to tell the photographer or even be "nice" with the photo. So I guess this license isn't for the faint of heart...
On the other hand, if you sell your photo to a stock photo bank, the same things apply... people who buy your photo can use it however they like.
But I would prefer fame instead of money, and this license certainly has gotten me a bit of fame!
tags: australia policy-law flickr commercial advertisement virgin mobile usage
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