Virgin uses CC licenced Flickr photo in ad campaign, forgets model release, gets sued.

Just to get the ball rolling, here are a few blog posts on this campaign.
Virgin Mobile Australia and their PR mistake, Virgin Mobile: Did You Forget Something?, Flickr Photos Used by Virgin Mobile and Virgin Mobile Botches Creative Commons-Driven Ad Campaign.

Also, this one is particularly funny/ironic.

The Elevator shot on Flickr. Molly (on the right mid-yakity-yak) is talking to a Yahoo Big Kahuna (head of Web Development for Yahoo! Europe ). Yahoo owns Flickr. Nice twist!

Oh, barely had time to post this before this was emailed in:

Official statement from Virgin Mobile USA:

As a completely independent entity from Virgin Mobile Australia, Virgin Mobile USA had no involvement in the advertising campaign at issue, which we understand was run in Australia. Virgin Mobile USA does not conduct business or marketing in Australia or any countries outside of the United States. We have replied as such to plaintiff's counsel, who has been directed to Virgin Mobile Australia.

Similar statement is in the first article linked to in my post above;

"A spokeswoman for Virgin Mobile USA said the company had nothing to do with the ads and had asked to be removed from the lawsuit."

For the record, global brands making global goodwill mistakes will get globally burned.

Another post on this story Courts will decide whether you have the rights to your personal image
- in the comments there I found this (legal) headache of a global mess. Welcome to teh intarwebs!

This is not as simple of a case is many seem to think…

The image was shot in the US, in Texas to be exact, by a US photographer of a US citizen. Texas has no statutory right to privacy OR publicity. In that respect it is a common law state. There MAY be some personal rights vested in Ms. Chang’s image but they will not be the same as in a state with statutory rights in place.

The second issue is that Flickr is, IIRC, a Canadian company. So Virgin Australia will have actually sourced the image from Canada not the US.

Third, Virgin Australia is NOT the same company as Virgin in the US. Virgin itself, the parent, is a British company but it only franchises the brand, it does not own or operate all the other companies that use it’s name. So the question arises if Ms. Chang can even sue Virgin [the US company using the brand] for something that a completely different foreign company [Virgin Australia] did. The image was not used in the US by the US franchisee, only in Australia by the Australian franchisee.

Lastly, an Australian lawyer looked at this, as well, and doubts that even if Virgin Australia was sued in Australia that the Australian courts would agree that an image of a non-Australian person, Ms. Chang, shot in the US by a US photographer, Justin Ho-Wee Wong, and sourced from outside Australia, Flickr in Canada, could even be actionable under Australian law for privacy or publicity purposes.

It will be interesting to see how it ends, but it is probably going to end badly.

-- John

I'm curious about the outcome of this one, for example if they find the photographer at fault for 'releasing' images without proper model releases, will that kill CC licenses for images containing people? What happens when trademarks (think: Times Square) is involved in a CC-licensed shot and used in a major advertising campaign in the US, and a trademark owners gets peeved and hires lawyers? tricky.

Oh, IANAL.

A very belated update, Chang's case was dismissed, you can read more on such cases of using likeness here:

Chang's parents sued Virgin Mobile for misappropriation of her likeness, and the facts would also have supported a claim for violation of her right of publicity. They brought other claims against Creative Commons, which they dismissed shortly after filing the lawsuit. The case, which was subsequently dismissed for lack of personal jurisdiction over Virgin Mobile, is interesting because it highlights the fact that somebody seeking to use a photograph needs to worry not just about copyright law, but also misappropriation and rights of publicity.
The Chang case involved a clearly commercial use of her likeness. As a general matter, you should never use someone's name or photograph in advertising or promotion of your website or blog without permission.