Creative Commons and Privacy

Filed as Features, Multimedia on May 19, 2008 10:00 am

Last year, Virgin Mobile Australia decided to use Creative Commons-licensed images in an advertising campaign. The campaign, dubbed “Are You With Us Or What”, featured photographs taken from Flickr, which were overlayed with taglines and a plug for Virgin’s cell phone service.

While most of the photos were of car accidents, graveyards, Christmas decorations or other non-human subjects, one ad found itself at the center of a legal storm.

The ad in question featured Alison Chang flashing a peace sign. The photo, taken by Justin Wong, was licensed using Flickr’s “select a license” feature under a Creative Commons by attribution license, which allows commercial use.

The problem was that, while the photographer had allowed commercial use through his license (though he later claimed to be unclear about the terms), it only covered the copyright of the work itself. Chang nor her parents had signed a model release, meaning the use potentially violated her right to privacy.

The result is that her parents sued on her behalf in a case that is still ongoing.

So what went wrong and how can others avoid a similar misstep? The answer is actually fairly simple.

Limitations of Creative Commons

Though Creative Commons is a great licensing tool for promoting sharing of your work, it is limited in that it only pertains to copyright issues. Other rights, such as privacy rights, it can not give away since they are both beyond the scope of the license and the people in question are not parties to the license.

This means that Creative Commons does not always give you all of the necessary rights to use a work free and clear. You may still have to seek out other permissions before you can publish a work, especially a photograph or video.

However, privacy issues are less common on the Web than copyright and libel issues because
much of what is being exchanged on the Web is in the public already. If one posts something to the Web and another person puts it on their site, may be a violation of copyright, but it isn’t likely a violation of privacy so long as the original author didn’t try to restrict access to it.

Even when real world issues touch the Web, privacy is rarely an issue. Unless one intrudes a space where one has a reasonable expectation of privacy, such as their home or a bathroom stall, simply taking a photo of them is not an issue and posting that image to the Web is usually not one either. Taking a photo of someone in a public place and posting it to another public place, including the Web, is generally not an infringement of someone’s privacy.

The problem typically arises when one tries to use such a photograph for commercial purposes. In most states, the law has held that the use of one’s image or likeness for commercial gain, including advertisements and selling prints, is a violation of that person’s rights, even if the photo was taken in a public place.

This is a big part of why professional photographers obtain signed model releases before photographing their subjects and why advertisers and companies are typically very skeptical about using images and footage they did not shoot themselves.

These issues are enough to give just about anyone pause before using a CC-licensed image for commercial purposes, however, the problems are easy enough to correct, with a few logical precautions.

Taking Pause

If you are looking for images or video to use for a commercial purpose, it is important to remember a few simple rules before you begin copying and pasting works licensed for such use.

  1. Try to avoid using material that has images of people in it, especially if they are recognizable in the work itself.
  2. If you have to use such images, do not assume blindly that the photographer to have obtained adequate rights, approach them and ask for a copy of the model release.
  3. If no model release has been granted or the release is inadequate for your purpose, contact the model directly and have them provide consent.

Though many may wince at this kind of legal maneuvering, claiming that Creative Commons was designed to prevent this kind of haggling, it is important to remember that, without a proper license, one would have to do these steps both to obtain the copyrights and the image rights.

Creative Commons may not have solved the full problem in these rare cases, but still provides half a solution.

Conclusions

In the end, there is a very good reason why Creative Commons has not caught on large-scale with advertising agencies and commercial users. Even if one assumes that they have adequate clearance the copyrights to the work, something that might not be the case if a party not eligible to license the work did so, there are still other rights to consider.

Often times, it is just easier and cheaper to create the material yourself, monitoring the licensing process the entire way, or purchasing from a professional media company that can provide all of the necessary paperwork.

As great as Creative Commons and other copyright licensing schemes are, they can not solve problems they were not created to address. However, often times, these exact issues are very close to the heart of commercial users, making it necessary for them to take extra precautions.

Note: Unlike copyright law, which is standard throughout the country and largely homogenized throughout the world, privacy law varies wildly from state to state and country to country. It is best to look up you local laws before taking or posting any pictures or video of people.

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