The photo shows 16-year-old Texas resident Alison Chang making a
two-fingered peace sign. Her youth counsellor, Justin Wong, took
the photo and uploaded it to photo-sharing site Flickr. According
to the lawsuit, Alison only became aware of the photo's use in
Virgin Mobile adverts when alerted by a friend. Superimposed on the
photo of Alison was the slogan "Dump your pen friend." The advert
also included the words: "Free text Virgin to Virgin."
Wong has joined Alison's mother, Susan Chang, in suing Virgin
Mobile Australia, Virgin Mobile USA and also the Creative Commons
Corporation, a not-for-profit group that offers various forms of
copyright licence for use by anyone wishing to license their
copyright-protected works to others.
The lawsuit, filed in Dallas County District Court, Texas,
claims the "unathorised and exploitative" use of the photo on
billboard, website and newspaper ads invaded Alison's privacy,
causing humiliation, embarrassment, frustration and grief. It adds
that the publication of the image with the slogan "Dump your pen
friend" is libelous.
The lawsuit also claims that the Creative Commons Corporation
failed adequately to educate and warn Wong about the meaning of the
licence he had chosen.
By default, images added to Flickr cannot be reused by third
parties, even if they are made visible to all users. They are
marked as "All rights reserved." However, Flickr makes it easy to
choose one of six Creative Commons licences.
Creative Commons licences offer a middle-ground between total
control over a copyright work and no control. They are described as
"some rights reserved" rather than "all rights reserved". Flickr
makes it easy for users to change their default setting and with a
few clicks, users can choose one of six Creative Commons licence
varieties.
Flickr directs users to the website of Creative Commons
Corporation to find out about the meaning of the different
licences. Wong chose an Attribution Licence, which the Creative Commons
website explains, will let others copy, distribute and display
your photo and derivative works based upon it, provided they give
credit the way you request.
The lawsuit says that Virgin failed to credit Wong in the ads
and therefore breached the licence terms. More controversially,
Wong blames the Creative Commons Corporation for failing "to
adequately educate and warn him, as a user of the Creative Commons
Attribution licence, of the meaning of commercial use and the
ramifications and effects of entering into a licence allowing
such."
A "Noncommercial" licence is also offered by Creative
Commons and that option is also available to Flickr users.
According to the lawsuit, Virgin Mobile's campaign features over
100 images downloaded from Yahoo's photo-sharing website Flickr.
But Alison was the only minor, which immediately incited the
attention of news stations, bloggers and legal commentators, it
claims.
"The photos are displayed on billboards, newspaper ads and
Virgin's website accompanied by trenchant, and often disparaging,
slogans that expand upon the underlying image," it says. "What
distinguishes this campaign from most if not all others, is the
fact that the images are being used under the Creative Commons
'Attribution' licences without the knowledge or consent of the
persons depicted in the photos."
The lawsuit adds: "In a matter of months, Alison was transformed
from a normal high school student to the 'dump your pen friend
girl' whose name generates over a hundred responsive links on
Google."
"Although Alison, like most teenage girls her age, tried
at all costs to avoid humiliating and embarrassing situations,
because of Virgin Mobile's opportunistic conduct, she now faces
them every day," it says.
Virgin Mobile is being sued for invasion of privacy because it
"implicitly represented to the public that Alison consented to the
use of her likeness to endorse Virgin Mobile's products, when, in
fact, she had no knowledge that her image was being used,"
according to the lawsuit.
The lawsuit seeks unspecified damages for Alison Chang and
Justin Wong.
