The Virgin case: why CC is (and should always be) just a copyright licence

There’s been a lot of talk/confusion/opinions around the case lodged against the Creative Commons international corporation, Virgin Mobile Australia and its American parent company, Virgin Mobile USA. Yes, CC has been sued, but not because of anything in the licences themselves per se, but rather what isn’t in the licences.

I don’t want to go to deep into the detail of the matter. Lawrence Lessig has provided a detailed overview of the matter which you should read if you are interested in know more. Also have a look at the CC FAQ on the matter. But in summary, Virgin Mobile Australia ran an advertising campaign called Are you with us or what? which used a whole stack of images under the generic CC Attribution 2.0 licences. The images were all from Yahoo’s photo-publishing website, Flickr. [Not sure what I am on about? click here]

Now the case against CC and Virgin is actually not a copyright matter. As I said in my previous post when the campaign started, because the licence was Attribution only, Virgin were permitted to make commerical reuse of the images. All the people saying that the photographers should have been paid have missed the point of that licence. Virgin could have paid the photographers if they liked, but there was no legal obligation to do so. So let’s shove that to one side, because as far as I am concerned, that is a non-issue.

Onto the meat of the matter: one of the photos reused by Virgin was an image of Alison Chang (a minor at law) who had been photographed by Justin Wong, who CC licensed the photo on Flickr. Virgin Mobile Australia reused the image in the Are you with us or what? campaign. The reuse included the overlaying of a slogan–dump your pen friend–along with the campaign slogan ‘Are you with us or what?’ and Virgin Mobile branding.

The matter consists of a claim by the parents of Alison Chang (on her behalf) that the use was a breach of their daughter’s right to privacy. The photographer is also arguing that CC  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.”

Firstly I want to say that I think the case against CC is weak. There is lots of information about the licences available on the CC website’s About section including an overview of the standard licensing suite, a list of things to think about before licensing you works, a detailed FAQ, number of mailing lists, a discussion of the main legal concepts and various media (comics and videos) which explain aspects of the licensing model.

If anything, they should have been arguing that Flickr should have been providing more information, since it was Yahoo who was publishing the image, not Creative Commons. I’m not too interested in whether a claim against Yahoo would stand up, but they do provide information on their site about CC including a brief summary of each type of licence and a link (on the right of the CC interface of the website) to the CC international website which provides all the information I listed above. If the user defines a CC licence as a default copyright licence when publishing on Flickr, information is listed under where you select your licence. When CC is set as a default for new uploaded images, and the image is published, on the right of that image’s page it states ‘Some Rights Reserved’ followed by an option to change the licence on that particular image. At the bottom line, CC simply provides licences, how other people/organisations use them is up to them.

So on the issue of model releases: CC licences are copyright only. As such, copyright hasn’t been breached in this matter as so the matter does not (overtly) implicate the CC licence. The plaintiff is of course suing for breach of privacy. It is a well understood industry standard supported by the MEAA that model clearances be sought when using images of other people, but where does it stand at law? My colleagues and I did some looking around to determine if model release forms are in fact required under Australian law. To date the only thing we’ve discovered that is of consideration is Section 53 of the Australian Federal Trade Practices Act 1974 which  prohibits commercial conduct that misleads or deceives consumers into thinking a particular person is affiliated with or has purchase a particular product. Case law on the matter involves people who are a celebrity or are well known to the public, where consumers were clearly mislead into believing that person had endorse the product. As my colleagues Jessica Coates and Emma Carroll said, “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.”

This is of course probably why the plaintiffs are suing in America, based on the argument that the image was published world wide when the media and bloggers became interested in the campaign. I admit I am not hugely knowledgeable in American privacy law, but I suspect that the disclaimer in the licence would apply here:

5. Representations, Warranties and Disclaimer

UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK…

To the extent that it would include that no assertion that model releases have been cleared is made under the CC licence. Perhaps if the photographer gave an additional assertion on a webpage or by some other means that may stand up, but prima facie the licence does not claim to include a warranty that a model clearance has been gained.

But I do want to say that I feel that the Commons Deed should have more information, such as the fact that periphery rights are not necessarily cleared. I say this because, despite being clearly articulated in the Legal Code, most users or CC content will probably never read the full licence. [Although I think it is very reasonable to have expected a large commercial entity such as Virgin to read it]. And isn’t that the whole idea? We are aiming to create an easy-to-use/understand licensing model that doesn’t require you to have a lawyer/be a lawyer. Expecting everyone to read the licence flies in the face of that aim. As Nic Suzor said on the Creative Commons Community list:

I am wary of statements which could be seen to be misleading or deceptive. An argument could be raised (and I’m not saying that it would necessarily be correct) that the photographer, by saying “you can use this image commercially”, is not being sufficiently clear that the permission only applies to copyright.

So I think a short statement stating that CC licences apply to the copyright in the work only, and do not apply to other rights that may be vested in the work.

On the issue, I highly recommend you read “Virgin Mobile Asleep on the Job” written by my colleagues Jessica Coates and Emma Carroll on the iCommons website.