Photo: Flickr user lifeontheedge

Sunday, September 30, 2007

Creative Commons is being sued!

If you're not a geek, here's some background:

By default, anything anyone writes is copyrighted with All Rights Reserved to the author. If it weren't for alternative licenses that let authors release some rights back to the public, Wikipedia would be completely impossible (so would Linux).

This sounds boring, but Creative Commons is actually tremendously important because it writes and produces these licenses. Wikipedia predates Creative Commons and doesn't use its licenses. It uses the GFD License instead, which was originally intended for software documentation and is craptastic in several ways but impossible to get rid of at this point.

Alright, the geeks can start reading again.

Update, 2007-10-9: The rest of this post is a bit of a stretch -- which is to say, I've changed my mind about the conclusion. It's preserved below, but just for history.

You might have heard part of this story already, but to recap:

1. Virgin Australia found an an ordinary, charming snapshot on Flickr. The photo used a creative commons license that allowed commercial use.

2. Virgin cropped and colored that photo into a kind-of-insulting, borderline-racist cell phone advertisement.

3. Without ever contacting the 15-year-old girl in the snapshot, Virgin put the ad up on billboards across Australia.

4. ProfitGet sued!

Which is all well and good. But now the girl's family is suing Creative Commons, too, for "not adequately informing" people what "license this photo for commecrial use" means.

Aside from the sheer communitarian spirit involved in suing a cash-strapped nonprofit organization that has taken unparalleled pains to make legal language useful and comprehensible to ordinary people, there's also some small possibility that a negative ruling could affect Wikipedia—and, really, anyone else who's trying to fix our grungy copyright system by making an end-run around it.

So thank you, Virgin, for being such complete jackasses that you've possibly (though this is still unlikely) set back an entire global collaborative intellectual movement.

Nono, really—thank you. From all of us.


Anonymous said...

Two things...

First, I don't understand how you can blame Virgin for using the image when it was within the terms as outlined in the CC license. Or did I miss something.

Second, how the _heck_ can you say that 'cropping and coloring' a photo is borderline racist?

Anonymous said...

There is no way that you can blame this on Virgin. The image was released with a CC commercial license - they were free to do whatever they want with it.

The problem here is the idiot girl who a. probably doesn't understand copyright law b. is trying to exploit the system to get a bunch of money she doesn't deserve c. let her friend post the picture on the internet.

The only person who could potentially be in the wrong in this case is the friend who posted the picture.

Ben Yates said...

Well, they didn't just crop and color it, they added the "drop your pen pal" line and the "virgin-to-virgin" thing at the bottom. They yellowed the background to make her look like a stereotypical asian girl. (And yes, I know it was supposed to be funny. I might just be oversensitive because I had an friend in Sydney who had to deal with a lot of racial shit -- things are a little worse there for asians than the U.S.)

Virgin was possibly within their legal rights (possibly not, because advertising is a special class of "commercial use"). But ethically, it was an utterly brain-dead thing to do. Use a fifteen-year-old girl in a national ad campaign without even notifying her first?

Ben Yates said...

Nutshell: having the legal right to do something ridiculous and stupid doens't make it any less ridiculous and stupid.

Anonymous said...

Would be nice if people actually were knowledgeable before they commented. There are two parties involved in creating the picture, the photographer and the model. They both have to agree. Yes, the picture was under a CC Attribution license. However, the picture was of a person, a non famous, average person. To have the right to use that person's image, Virgin needs a legal release signed by the model. In addition if the model is under the age of consent (she is) then they need her parents permission as well. So, they have NO right to use the picture.

Think of it this way, a child is only adoptable if both parents agree. One signature is not enough.

Anonymous said...

So adding the phrases 'drop your pen pal' and 'virgin-to-virgin' are racist remarks? AND, how on earth do you equate color correction (if there was any) to being racist as well? You appear to be feeding the political correctness frenzy with such glib remarks.

For the record, that picture was posted under the CC Attribution License which, per the FAQ, states:

You let others copy, distribute, display, and perform your copyrighted work - and derivative works based upon it - but only if they give you credit.

Virgin did exactly as was required by the license. This isn't even a case of a 'borderline' ethical or moral decision - this is a case of someone knowingly posting a picture to a _public_ website and selecting a license allowing pretty much any use of said picture as long as credit is given for the original art work. Now that a corporation uses the picture, following not only the letter of the license but also the spirit, a certain litigation-happy group of people are all bent out of shape and sue the deep pockets.

Back to your original argument that this case could impact Wikipedia do you come up with the thought that a ruling in her favor could impact Wikipedia in _any_ way whatsoever?

Anonymous said...

what if... you post a pic of yourself somewhere under a cc license, then another company took that pic, add some captions, like "don't be a dick, just suck it! ", what would you feel?

Arnomane said...

@First commenter: CC are copyright license agreements however copyright does not exist in free space but within the frame of other laws that can add further restictions or rights.

For example official coats of arms are public domain in many nations (explicit exception from copyright) but there are restrictions on wearing and endorsing them - and these restrictions have nothing to to with copyright.

The same holds for images of people in many nations. Depending on national laws you are not allowed to modify an image of a person beyond a certain degree in a harmfull way (so called personality rights) regardless what a copyright notice/license says.

Furthermore this very image would have been deleted in Wikimedia Commons, cause of lacking written agreement for publicating this image of a non-famous person.

Anonymous said...

Virgin did NOT use the photo within the terms of the license. Virgin did not attribute the photo the way the license says they must do. Virgin has no rights to use the photo in a commercial context except under the terms of the license, and quite simply they did not fulfill the license terms. Read Section 4 of the legal code of the license. Virgin did ONE of the six things they were required to do.

Saying that Virgin is "free to do whatever they want" with the photo is outright hogwash. Read the license before spouting absolute nonsense.

The other anonymous troll saying "Virgin did exactly as was required by the license." is totally wrong. Virgin did NOT do what was required. READ THE LICENSE. Virgin did not comply.

Virgin didn't comply with the license, and therefore their entire use of the photo is a breach of copyright, plain and simple.

Geyser said...

I'm a bit confused on two accounts:

1.) What exactly is Virgin supposed to do to make it OK for them to put up the ad?
The page with the ad pic says they did indeed credit chewywong, although it's too small to tell whether they added any information regarding the license terms. Is there a bigger image?

2.)How is this racist? Are asians routinely sterotyped as being people's pen pals? Or standing in yellowed areas?

It seems like the biggest problem here is that Virgin didn't secure model rights, which has nothing to do with CC and everything to do with Australian law. So why is this girl suing CC and not Virgin?