The biggest mistake made in this case was by the Virgin Mobile Australia marketing team that decided to use this image without permission, from either the Flickr user who posted it (Alison’s camp counselor) or from Alison and her parents, since she is a minor.
No. The biggest copyright-related mistake was committed by the person who put the image on the web without permission from the subject (a minor) of the photograph. Virgin was in the right to use the work as dictated by the license they saw. Placing that kind of responsibility on Virgin is unrealistic. A model release is the responsibility of the publisher (update: see comments), not Virgin. Wes asks:
Why did the Virgin Mobile Australia marketing team not send a message to Alison’s counselor, asking for his permission to use the photo he’d published?
Because the CC license said they didn’t need permission so long as they respected attribution.
Wes continues:
While it was true the camp counselor published the photo under a Creative Commons license, the Virgin Mobile Australia marketing team failed to meet the most basic requirement of a Creative Commons license: Providing attribution for the source of the photo.
Is this claim of failure to attribute true? I’m not so sure it is. However, it’s a secondary issue because if it’s true that a model release was never obtained, then the buck stops with the publisher, not Virgin.
While Wes correctly notes the bogus title of this article, it seems that the only lawsuit possible is not one of copyright but of libel. Apparently, the advertisement came with a tag-line “Free text virgin to virgin” – which the plaintiff may (absurdly, IMO) attempt to argue caused suffering to Alison Chang.
Perhaps I’m missing something that someone can point out. Otherwise, I don’t understand Wes’ advice that:
If CC permission is granted and your publication is high-profile, get additional explicit permission.
Tags: alison chang, virgin mobile, wes fryer
GNUosphere 
January 22, 2008 at 11:57 am |
What you say makes sense. The problem is that traditionally, model releases are only relevant to commercial uses of photographs so I would even go so far as to say that the photographer who put Alison’s pic on flickr isn’t to blame either.
January 22, 2008 at 12:58 pm |
Hmm. That makes sense too. Well then, I don’t see anyone at fault in this case. Virgin should not be held liable because the picture was published with commercial use already granted. So, they should not have to get a model release.
I’m curious if the lawyer for the Changs will try the “they didn’t get a model release” tactic or “they defamed Alison with their tag-line” tactic.
Both seem pretty weak to me but if there is any possibility of liability here, it would appear Virgin AU is the only party a finger can be pointed at.
Perhaps this very case will shake up the traditional idea that model releases are only necessary in commercial circumstances.