Be careful using creative commons images on your blog
Shel Holtz, an Internet PR expert, has picked up on recent lawsuit brought by a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The suit alleges using the photo is a violation of the subject's privacy rights. Shel directs us to a CNN interview with the plaintiffs attorney.
Of interest to bloggers is that the photographer posted the photo to Flickr under a Creative Commons Attribution license. On its face the license tells us we're free to share, copy, distribute and transmit the work so long as we give attribution.
I'm not an expert in IP licensing but this Creative Commons license has been widely viewed by bloggers that text or images marked with same were free to use.
Lawrence Lessig, Professor of Law at Stanford Law School, founder of the school's Center for Internet and Society, and driving force behind the Creative Commons License, offers limited commentary, as he's restrained because of probable work behind the scenes as a result of the suit, drawing a possible commercial vs non commercial distinction.
[T]his case does again highlight the free culture function of the Noncommercial term in the CC license. Many from the free software community would prefer culture be licensed as freely as free software -- enabling both commercial and noncommercial use, subject (at least sometimes) to a copyleft requirement. My view is that if authors so choose, then more power to them.But this case shows something about why that objective is not as simple as it seems. I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes "commercial use"), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community.
As Lessig says, more discussion to follow - including in the many comments to his post.
As an intellectual property attorney since 1992 and a blogger since 2003, I see basically two types of bloggers. The first type, comprising the majority, are not considering copyright issues, let alone privacy issues. The second group work off a misguided hodgepodge of copyright urban legends they found on the internet.
In my experience, the second group is even more dangerous than the first. At least when the first group gets caught with its hand in the cookie jar, it repents and tries to make amends. They contact their intellectual property attorney immediately and usually avoid huge damages. The second group, however, is so steadfast in its misguided beliefs that it is often headlong into litigation before it realizes the errors of its ways.
I would be interested in finding out how the second group thinks it can determine the absence of any privacy violations with Flickr photos. Do they actually determine the names and addresses of every individual in each photo and get a signed contract from each one authorizing use of the photo?
If you are a Flickr-using blogger and think the Flickr creative commons license insulates you from liability for privacy violations, or even from copyright violations in the event the poster is not really the owner of the photographs, please jot down my name and address. You may be needing it in the near future.
Also, if you could do me one more favor and ignore the cease and desist letter you get from the copyright owner or subject of the photo. Its just that I make a lot more money trying cases than I do having my clients comport with the copyright and privacy laws in the first place. And my kid wants a new Jet Ski for Christmas.