Photo: Justin Ho-Wee Wong

The family of teenager Alison Chang has sued Virgin Mobile and Creative Commons. Virgin Mobile launched an ad campaign in Australia this summer using Flickr photos licensed under creative commons. A photo of Ms. Chang taken by her youth counselor was used without her knowledge or consent, and her family is seeking undisclosed damages for libel and invasion of privacy.

It is unclear under what grounds Creative Commons has been brought into this suit. The primary issues in this case relate to right of privacy, right of publicity, and defamation. Creative Commons has merely supplied Flickr and the artist with valid contract language which allows the artist to release some of his rights. The Creative Commons copyright license does not explicitly deal with all factors that Virgin Mobile should have taken into consideration before using a cc-licensed photograph in a large scale commercial campaign. Additionally, Creative Commons was aware of these issues, and published a blog post in July 2007 pointing out possible problems with Virgin Mobile’s campaign (see below).

Although it is unclear at this point whether the responsibility to secure model release forms allowing commercial use lies with Virgin Mobile or the photographer who chose to put the photo under an attribution-only license. In choosing an attribution-only license, the photographer may have been making an implicit statement that his work was suitable for commercial purposes. In this case, the photographer is one of the claimants against Creative Commons and Virgin Mobile when it appears that he could have been making a mistake in applying a license without understanding it.

The primary legal claim in this case is one of the right of publicity. Simply put, this right is the inherent right of every human being to control the commercial use of his or her identity.¹ The right of publicity is a state-law tort claim similar to unfair competition.

Copyright and other similar rights like right of publicity have created a dizzying tapestry of almost incomprehensible laws that apply to every image or work in our multimedia digital culture. Creative commons has created a system for allowing authors to opt out of some of these rights. The attribution only license is often used by artists who wish to have their work used in a commercial manner to increase their reputation and visibility. Virgin Mobile was attempting to rely on the photographer’s statement that this work was available for use with mere attribution and is now becoming the target of overzealous intellectual property protections that were created before the current information age.

Two excellent blog posts have been written on this topic in Australian blogs:
Virgin Australia and Creative Commons Named in Lawsuit
CC and Virgin Mobile

¹Taken from The Right of Publicity and Privacy by J. Thomas McCarthy.

This post is by Brian Rowe and Sarah Davies

The Entertainment Law Initiative Writing Competition, sponsored by the GRAMMY Foundation, REQUIRES authors to yield all ownership rights to their work to the Grammy foundation.

Condition 11 states:

“Each manuscript submitted shall be accompanied by a letter from the author in which he or she certifies that the article submitted has not had prior publication, that it is original work prepared by the author alone for this contest, and that the author transfers ownership to the GRAMMY Foundation.”

Ironically the Grammy Foundation will be publishing the winning articles in a Vanderbilt Law Review. Vanderbilt is listed as an adopter of the Open Access Law Journal Principles. The Principles require that

“The Journal will not interfere at any time with the author’s freedom to make his or her work available under a license as free as the Creative Commons Attribution-NonCommercial License.“

The transfer of ownership clause in the Entertainment Law Initiative Writing Competition is incompatible with the Open Access Law Journal Principles. I am concerned that authors who believe in open access issues will be discouraged from entering the competition.

The default taking of ownership rights from authors to middle men is one of the largest problems in our current copyright system.

Personally I will not publish legal scholarship, or any scholarship, that is not open access. I wish Scientific Commons would open up its Open Access Law Author Pledge to non tenured professors and law students.

Last year, before becoming a student at Seattle University, I attended the Intellectual Property Law Society (IPLS) sponsored CLE on the intersection of Antitrust and IP. I was very impressed by the panel of speakers that included Daniel Ravicher of Public Patent and Joe Miller of Lewis and Clark’s Law School who challenged the assumptions put forward by many of the other pro-corporate-interest speakers by adding a voice for Social Justice that included alternative views of IP and the social harms of some of the policies being discussed.

This year I attended the IPLS sponsored CLE on video games and IP law, and was disappointed that the CLE did not allocate time to social justice issues related to the topic at hand. The CLE covered several topics that have a potential social justice impact such as user-owned IP in massive multilayer online games, the rating of video games, and file-sharing via peer to peer networks. I was hopping to see at least one speaker address these issues from a user’s perspective.

Unfortunately, the CLE not only ignored social justice issues but also artificially portrayed one on the most influential online communities for social justice movements, Second Life. Second Life was painted as a shallow chat and cybersex service that has squandered its IP rights by allowing its users to retain copyright on everything they create. This depiction failed to mention of some of the extremely positive aspects of Second Life. Second Life has become an online community for both academics and nonprofits who wish to reach a wider audience. This last year I attended a lecture in Second Life sponsored by Harvard’s Law School as part of their Law in the Court of Public Opinion extensions class. The lecture was free and anyone could register and participate regardless economic standing or geographic location.

On the nonprofit front, Second Life has become a gathering place for organization like the Electronic Frontier Foundation and Creative Commons who advocate for users rights online and alternatives to traditional copyright. Their events last year included an interview with the highly esteemed Seventh Circuit Judge Richard Posner that respectfully challenged some of his proposition in his recent book “Not a Suicide Pact : The Constitution in a Time of National Emergency”. Organizations like UNICEF and Global Kids have reached out to users in Teen Second Life as a vehicle to involve teens in community outreach activism on global and local issues.

I hope next year’s CLE on IP returns to the thoughtful dialogue about social justice that brought me to SU. To help realize this goal I will be starting a chapter of the socially conscious IP student organization Free Culture. If you have interest in helping balance the prospective on IP and Social Justice that Seattle University puts forward, please feel free to contact me, roweb@Seattleu.edu or Brian@freedomforip.org.

Thank you,

Brian Rowe
1L Seattle University
FreedomforIP.org

PS this Letter is in the Public Domain, No copyright has been reserved.

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