Virgin Australia using Creative Commons content

(via Rebecca Kahn) The Icommons mailing list has been discussing another potential Creative Commons enforcement case, this time in Australia. Virgin Mobile Australia has started an advertising campaign called “Are you with us or what?“, which has been collecting images from Flickr released under a CC-BY licence, which allows commercial re-use and modification of the licensed work. The images contain comments which could be construed as being insulting and derogatory, as the one displayed here. Needless to say, this has angered some people (displaying my penchant for understatement once again). How dare Virgin Mobile misuse CC licences in such way? Some bloggers have placed the fault squarely in Creative Commons’ lap, as they argue that this campaign’s subjects were not made to sign model release forms, which I guess is the manner in which Australian modelling agencies deal with image and personality rights.

There is plenty to discuss here. It is true that Creative Commons does not deal in any way with image and/or personality rights. As many pointed out in the mailing list discussion (nod to Andrew Rens), Creative Commons offers copyright licences that do not deal with other areas of the law. While image rights are not something I know a lot about, it is clear that this is an area dealt separately by other type of legislation. One cannot expect the thousands of people uploading images into Flickr and Facebook to ask their subjects for model release forms, or any such nonsense.

It seems like Virgin may be safe in this case with regards to copyright claims, as the images contain a small link to the original photo stream (for example, the one pictured above can be found here). However, there are some other licence elements in which Virgin may be in breach of the terms and conditions. It was also mentioned in the list discussion (nod to Herkko Hietanen) that there is an obligation to place a copy or link to the licence on any modified works, which is not done here. I would also argue that the resulting campaign is being released as a Flash animation, which may (or may not) fall foul of the restrictions against technological protection measures.

Similarly, I believe that Virgin is not exempt of misuse of the subject’s other rights. I believe that in Europe there could be a case to be made with regards to Data Protection as the pictures could be used to identify the data subject. It is also clear that the captions could be considered defamatory and/or derogatory, which could be litigated regardless of the copyright case. And there is of course the right of image, wherever that may exist.

While a lot of people oppose non-commercial clauses in Creative Commons, I must say that it is cases like the one I’m describing which proves the point of the popularity of such licence elements. There is now a Flickr group dedicated to collecting the images used in the campaign. One of the comments left in the group’s message board pretty much sums it up: “ooh, that sucks. :/ I switched my license a while ago to no commercial use. Glad I did!“

Freedom advocates, take note.