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.