Tuesday, March 24, 2009

Selling Your Neighbor's Lawnmower: The CC and Personality Rights

An interesting situation resulting from creative commons licensure on Flickr has cropped up relatively recently. A church youth leader posted a picture of one of the kids in his group on his Flickr account, and he chose a CC license (specifically the one that requires mere attribution for commercial use) for the photos in his photostream.

Half way around the world, Virgin Mobile in New Zealand grabbed the photo and printed up (rather large) advertisements, insinuating that the girl pictured was a pen pal that someone would finally be able to "drop" once they got a Virgin Mobile phone. That's not a nice thing to say about a pen pal, and the girl, who's name is Alison Chang, was reasonably kind of upset about her depiction on these ads.

So, she sued. Or rather, someone sued on her behalf. The interesting thing about this case is that the guy who took the photo has no copyright infringement claim against Virgin. His license gave Virgin every right to use the photo in their ads. The theory in this suit isn't a copyright one; it's a "right to publicity" or "personality rights" case. It's more akin to a model who hasn't signed a release form than to a photographer who's work has been stolen.

But aside from the claims against Virgin, the suit also names the Creative Commons as a defendant. That makes no sense to me. The license worked exactly as it was supposed to: the photographer released any rights to the photo (conditioned on attribution) to anyone who wanted to use the work. The Creative Commons didn't make any mistakes here. The photographer, however, might have. He released a right to use Alison's likeness that he never had in the first place. It's similar to if I sell you, via eBay, my neighbor's lawn mower, and my neighbor gets mad at you for using it. If the photographer did anything wrong, it was that.

But he probably didn't do anything wrong. The issue has to be re-defined: a reasonable person knows they can't sell their neighbor's lawn mower to a third party without consent. Does a reasonable person know they can't give their neighbor's likeness to a third party without consent? In general, probably yes: anyone knows, for instance, that people in the background of a reality television shoot have to sign releases. So does a reasonable person know that posting a photo under a CC-atrib license is the same thing as giving it away to anyone who is willing to credit them, to use it however they like? Maybe not.

This is a failure of individuals to try to understand their licensing, not a failure of the license. Flickr, by default, puts all new uploads under a traditional "all rights reserved" license. An individual has to actively switch their photos from "all rights reserved" (what this photographer probably wanted) to "some rights reserved" (the license that allowed this supposed misappropriation). Things like this wouldn't happen if people took a moment to think about what switching their license gives up. Should courts protect people who don't understand what they are giving away? Or should they incentivise learning what they are giving away? Maybe some combination of the two?

This case will help define how "personality rights" and model releases work for alternative licenses like a CC license. Either way, as alternative licensing structures become more commonplace and are more fully understood by the public, cases like this will likely become a lot less frequent. And according to CC, education about these licenses is one of their main goals. That means, at least in regard to the Creative Commons, that as time goes by there will be less litigation and more education, with reasonably understood copyright policies and rules eventually taking shape.

(Note: the image at the top is from Joe Pemberton's photostream, used under a CC license. It's a clever little image, but unlike the guy who created it, I don't think any of this confusion is the CC's fault.)

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