Virgin Mobile Uses Web Pic of Kid in Ad, Gets Sued

One of the strangest legal cases in recent months erupted last Friday, but it's one that could have serious ramifications to anyone who posts material online, or even those who find their face in pictures making their way to the web. Get this...

A Texas teenager making a "peace" symbol with her fingers (or a "V") was photographed by her youth counselor, who posted in on the photo-sharing service Flickr. The counselor chose the creative commons license, as many people do, which says that photos can be used in other materials provided they are attributed to the photographer. So Virgin Mobile Australia (the cell phone company) did just that: It grabbed her picture, cropped it, and turned it into an ad campaign with the tagline "Dump Your Pen Friend." (I guess that's the same as a "pen pal.") Here she is, larger than life, plastered on an Adelaide bus stop. (You can also follow the model's confusion and outrage in the comments on that page.)

Now the photographer is suing Virgin over the illegal use of his photo. Normally he'd have a case, but he did something that makes it almost certain this suit will be thrown out of court: He chose creative commons instead of a normal copyright for his shot. Creative commons is a licensing structure (and non-profit group) created by Lawrence Lessig in 2001 as an alternative to the oppressive terms of standard copyright. Anyone can use a "CC" license for anything they create: A photo, a novel, a music CD. But creative commons gives creators fewer rights. Specifically, their works can find their way into commercial products, without compensation or even notification. Here, Virgin Mobile didn't have to pay the photographer or the "pen friend" girl for the ads. That's good for Virgin, which gets free content out of the deal. Bad for the girl who's now being harassed over the ad, portrayed as a loser who should be dumped.

In a strange twist, the photographer is also suing creative commons. No one's really sure how that's going to turn out.

This isn't the first time Flickr shots have led to legal action. Earlier this year a 14-year-old's self portrait, posted on Flickr, was used on the cover of a pornographic DVD. Nor is it the first time people have used the creative commons license without fully understanding what that means. Seth Godin published a free ebook under the CC license, only to find someone else printing it up for real and selling it on Amazon. Of course, Seth didn't get paid.

That's the takeaway here: No one forces you to choose CC over copyright, and if you don't understand the ramifications of that choice, stick with good-old single-C copyright. Can you imagine if, say, a photo of your wife was used in a Herpes prevention public service billboard? Creative commons has its uses, but it can also lead to unanticipated headaches. Maybe leave CC for the landscape shots, and keep copyright assigned to the photos of your family and friends.

LINK: Creative Commons (And Virgin) Sued For Teen's Photo Being Used In Ad Campaign