Virgin Mobile and the Case of the Nicked Pix

With all the social networking and photo-sharing Web sites out there, few teenagers are taken by surprise when they find that pictures they posed for have been posted online by their friends. However, few expect to see their likeness then featured, without their permission, on a billboard advertisement for a major telecommunications company.

Virgin Mobile should have sought a release from an American student before using her image — clipped from the online photo sharing site Flickr — in an advertising campaign, according to intellectual property attorneys.

“I have clients that I counsel day-in and day-out: If you’ve got a photograph of somebody and you don’t know who it is and you can’t get a release, there could be a lot of liability riding on that,” Mitch Weinstein, head of the IP practice at Levenfeld Pearlstein in Chicago, told the E-Commerce Times.

Virgin is about to find out just how much liability it has riding on the use of a photo of 15-year-old Alison Chang, of Dallas. Chang filed a lawsuit against Virgin last week for their wrongful use of her likeness.

Road to Litigation

The road to the courthouse started innocently enough at a church-sponsored car wash. Chang and a friend posed for a photo taken by a youth counselor, Justin Ho-Wee Wong.

Wong, a prolific contributor to Flickr — he’s uploaded some 11,000 pics there — posted the image to the photo sharing site.

An ad agency in Australia spied the snapshot and the next thing you know, Chang, sans friend, is on a billboard in Adelaide as part of an ad campaign.

A Flickr user down under saw the ad and posted a photo of it at the Web site.

The user thought Wong would be excited to see his photo hit the big time.

Chang, though, was less than pleased with her sudden fame, because it suggested she was the kind of “pen friend” — Aussie speak for a pen pal — that could be replaced with new exciting friends when one got a cell phone and subscribed to Virgin’s network.

“This case is a poster child for the potential liability of not getting a release,” Weinstein argued.

Altered Photo

What makes matters worse in this case is that the photo was altered by the ad agency, he contended.

“It’s one thing if you’re using a photograph of some kids washing cars on a Dallas street,” he continued. “It’s another when you take that same photograph and you doctor it to meet your particular purpose and cast a bad light on a kid.”

Apparently, the ad agency believed it had solid legal footing to use the photo because the photographer, Wong, had licensed use of his images through an agreement worked up by Creative Commons, a nonprofit group dedicated to offering alternatives to traditional copyright and licensing schemes.

Under the flavor of Creative Commons agreement endorsed by Wong, his photos could be used by anyone in any way — including for commercial purposes — as long as he received credit for the photo.

“He can grant the rights to use the photographs themselves,” Weinstein maintained, “but he can’t grant the rights of publicity or privacy of the young lady that was the subject of the photographs.

“They’re not his to give away,” he added. “They’re hers.”

Venue Issues

Venue may add a twist to the case, according to Denise Mroz, an intellectual property attorney with Woodcock Washburn in Philadelphia.

Although the questionable ads ran in Australia, the lawsuit has been filed in the United States against Virgin Mobile USA, which claims it is an independent entity from Virgin Mobile Australia.

“Australia may have very different views on what people can do with a photograph if it’s taken of you in a public place,” Mroz told the E-Commerce Times.

“In the United States,” she noted, “before you can use an individual’s likeness in a commercial or any advertisement, you would have to get that person’s permission if they are identifiable in the photograph.”

Creative Commons’ Role

Also named in the lawsuit is Creative Commons. Although the organization questioned its inclusion in the suit, the fact that it’s been pulled into it may influence its future efforts at copyright reform, according to Michael J. Madison, associate dean for research at the University of Pittsburgh School of Law.

“Creative Commons licenses don’t make any effort to deal with questions of privacy or other legal doctrines like the right of publicity,” he told the E-Commerce Times.

“I don’t think Creative Commons should have been sued, but the legal merits are beside the point,” he observed. “This incident shows that the world that Creative Commons lives in is more complicated than just the copyright world.”

“I don’t know that Creative Commons needs to change what’s its doing,” he added, “but the people who run Creative Commons are going to be thinking about the overlap between copyright and other areas of law like privacy and publicity.”