Some of you have probably noticed news stories over the past week about Virgin’s use of CC licensed photographs as part of an advertising campaign. Here are some thoughts floating around the CCau office about the case.

The basic story is that Virgin found photos on Flickr that had been licensed under CC licences, and used them in a series of billboard and web advertisements around Australia. The advertisements are essentially the photographs with captions written across them – which were often insulting to the people pictured in the photographs – and the tagline ‘are you with us?’. Controversially, Virgin did not inform the photographers that they were using the images, or the people in the photographs.

There has been a lot of discussion online about the legal and ethical implications of the campaign. Some of the photographers have criticised the campaign. Some of the people captured in the photos (and in particular the brother of a 15 year old girl who was the subject of an insulting tagline) have also expressed displeasure. On the other hand, other photographers have come forward saying they approve of the campaign, and that this is why they CC license their photos in the first place.

From a CC standpoint, there are a few legal issues to consider. If the photographs Virgin used were licensed to allow commercial use and the company complied with any other licence restrictions (ie Attribution, No Derivatives, ShareAlike) this kind of use is almost certainly permitted under the CC model. However, there are some questions about whether Virgin has followed these steps. For example:

* At least one of the images Virgin used appears to currently be under a licence that doesn’t allow commercial use – though it’s not clear whether it was under a broader licence in the past.
* The same photo also has a ShareAlike requirement, and there’s no sign of Virgin badging the billboards ShareAlike.
* It’s questionable whether Virgin’s attribution satisfies the CC requirements. They have included a link to the home page of the photographer’s Flickr account in the bottom corner of both the billboards and the web versions of the ads, but they haven’t directly named the photographer, linked to the photo itself, or referenced/linked to the CC licence the photo is under – all of which are the standard attribution required by the CC licence. Although the licence allows users to vary these requirements when it’s ‘reasonable’, it can be argued that Virgin had no reason not to give greater attribution.
* There is also an argument (though probably a weaker argument) whether by adding captions that are insulting to the subjects Virgin has breached the moral rights of the photographers.

But public discussion of the issue has really focused on the question as to whether Virgin should have obtained model clearances from the people who are identifiable in the photographs. Although it seems to be industry practice to do so where a photograph is being used for commercial purposes, there is real question whether this is a legal requirement in Australia. Certain sections of the Trade Practices Act 1974 do appear to require consent before a company can imply that a person is endorsing or purchasing their product. However, these ads, with their deliberate ‘amateur’ style and sarcastic bylines, clearly don’t imply such endorsement.

Nevertheless, some commentators have suggested that the failure to deal with the issue of model clearances represents a flaw in the CC licences. However, the licences make it very clear that they merely provide copyright permissions, and that they do not purport to deal with any other area of law. Due to the vast number of laws that can come into play when a person is using a copyright work (eg defamation, privacy, competition) it would be impossible for the licences, or the person issuing the licence for that matter, to definitively cover all potential legal issues in placing it releasing it for general use. There is arguably an onus on the person making use of the work to identify any laws their particular use might breach, and to make an effort to obtain any additional permissions that are needed – particularly if their use is large-scale and commercial.

But what this incidence has really highlighted is the ongoing difference of opinion as to the ethics of and motivations for CC usage. Some people have argued that this kind of use goes beyond the purpose of the CC licences. Even if they had no legal duty to do so, should Virgin have notified the photographers that they were planning on using their photos in such a widespread commercial campaign? This might have been a good risk management strategy, and would probably have helped them to avoid some of the public criticism they’ve received.

On the other hand, there is also an argument that this is exactly why CC has non-commercial licences – so that people can choose to share their material even with large corporations if they wish to, without requiring them to get extra consent. Hopefully those who are using the broader CC licences, like Attribution, understand this – but maybe, if they didn’t, more explanatory materials are needed, to ensure that people only licence their material in way they will feel comfortable with.

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