Suit exposes flaws in Creative Commons

When Creative Commons first surfaced, it was heralded as a means to share media without being ensnared by the complications accompanying traditional copyright.

With six different licenses available, media creators were provided the opportunity to dial in the exact rights they wanted. Or at least that was the plan.

In reality, this bevy of choices has led to significant confusion and as CNN reports, 16 year-old Alison Chang recently learned her picture is being used for a Virgin Mobile ad campaign in Australia. She didn't give her permission, and it appears that the ads exploit confusion around Creative Commons.

On April 21, 2007, during a church camp, Chang's counselor snapped a photo of her and uploaded it to his Flickr account. He published the photo under a CC-BY-2.0 license, which allows for commercial use of the photo without obtaining permission from the copyright owner.

In less than two months, the photo had been cropped and repurposed to promote Virgin Mobile in Australia.

Upon learning of the ad, Chang wrote on a Flickr page, "hey that's me! no joke. i think i'm being insulted...can you tell me where this was taken." Underneath Chang's comment, there is a note from the original photographer: "where was this? do you think virgin mobile will give me stuff?"

It's unclear whether Virgin coughed up any loot, but Chang's family has taken legal action against the company for not obtaining proper permission for the use of her likeness.

While the photographer may have elected to publish his photos under a Creative Commons license, he does not own the rights to Chang's image.

Who neglected their responsibilities though, and should they be held liable? Did the photographer have the right to license his work without getting permission from Chang? Did Virgin have an obligation to verify with the subject of the photograph that she had given her permission? I'm uncertain who the law will find liable, but given that Virgin is a large company with attorneys who probably review everything, it seems unlikely that Virgin will be held responsible.

Chang isn't the only person who has found herself caught in Virgin Mobile's ad campaign. In fact, there is a Flickr Group with many of these Australian ads that rely on photos "borrowed" from Flickr.

Chang's lawsuit will redefine Creative Commons and it will be interesting to see how this affects the organization's future.