molly.com
Friday 13 July 2007
Virgin Mobile: Did You Forget Something?
Like how about model releases? The story is simple: Virgin Mobile’s advertising agency used photos marked for commercial reuse via CC licensing on Flickr in its current Australian campaign.
What they failed to do was get permission from the people in the photos, in this case me and several friends, at least one of whom is a Yahoo! employee.
Not sure what the next step will be legal-wise, if any, but I’m looking into it you can be sure.
This is not the kind of famous I had in mind. 
Filed under: community, photos, policies, professional, society
Posted by: Molly | 08:55 | Comments (34)
From my research, it appears you are the best known photo subject in this ad campaign and the one who’s been most clearly insulted by the caption. When I saw your photo on the Virgin web site for the first time, I recognized you even before I went to Flickr and found the picture to confirm it.
On these grounds, it would certainly appear to me that you’ve got a libel claim. At a minimum, it was inappropriate for Virgin Mobile to assume that you’d accept a joke at your expense. Especially one that’s being used in billboards, transit posters, newspaper ads, and online.
I don’t know if I’d sue in your position, though. Time spent with lawyers is expensive in more ways than one.
On the bright side, publicity you bring to this situation could help educate Creative Commons adopters about an issue of commercial licensing that’s not well publicized. If you don’t have a model release for your subjects, you probably shouldn’t offer a photo for commercial reuse.
Good luck with it. Sorry it happened, but it probably could help maintain your hold on the title of Internet’s best-known Molly.
As I said on Flickr, “I’m inclined to make more of a fuss about this in order for it to be an educational process for all of us rather than being angry. In fact, I’m actually rather amused by it. And it’s not like I’ve never had bad breath, particularly during SXSW after hours partying.”
I’m amused rather than insulted. I agree wholeheartedly that this is a learning and sorting out opportunity for all of us when it comes to IP and CC. The legal and social boundaries are changing dramatically, and we all need to explore the best ways to change and grow, too.
This is why I have not used a CC license on my flickr. It is a wonderful idea but, for photos with people or property in them (at least half of mine, I would say) I could get in a lot of trouble in instances like this.
All of my flickr photos should be © me with all rights reserved. If anyone wants to use one they may, by all means, contact me and then I can make sure that I get any model and property release forms before selling the rights on in any way.
Wow – that was pretty coherent for me! Remember, though, INAL!
SnapVillage insists on model and property release forms for any photos you upload and resell via their site, where relevant.
Molly -
Contact me about this ASAP.
After a quick look at the “Legal Code (the full license)”, I can already think about point 4 (restrictions), part b:
“If you distribute, publicly display, publicly perform, or publicly digitally perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; [...]”
I hope this is relevant.
Sorry, here’s the link to it: http://creativecommons.org/licenses/by/2.0/legalcode
Send them a nice email, that you want a night on the town with Richard Bramson (which should be an interesting meeting) and have them thrown in a ticket on Virgin Atlantic.
Besides that, do you really care? Shit happens.
Does anyone know if the creative behind the campaign was VM internal or whether it was an external agency?
One thing that needs changed is the Ad agency that started this campaign. How to hell do ‘lifts’, ‘bad breath’, etc. relate to mobile communication. Beer in large cans, ie. Fosters, now that has merit.
i’ve started to write several things and then deleted so I guess my comment is: flawed for several reasons. Very lazy marketing department, very shoddy ethical oversight, the legal department has failed by letting virgin get in a possible negative battle…
Ok.. nobody here in Australia EVER drinks
Fosters. Actually, I’m not sure you can
even buy it here!
Plus, as far as I’m aware, Fosters isn’t even made
in Australia any more.
[...] Things like this really should not happen. The fact that they do shows a disturbing lack of knowledge on the part of every person who signed off on it. I suspect no lawyer looked at it at all, as checking that model releases had been obtained would be the most basic due diligence. However, anyone in the creative industries, particularly the commercial creative industries, should know about them as well. [...]
Molly:
I’ve read the comments here and over of Flickr.
Why is the first response by some to issues like this so often legal/lawyers/sue? Isn’t the easiest, socially responsible, ethical, and often most effective way to respond is to write a letter asking the offending party to cease and desist, before bringing out the big guns?
Kudos on wanting to use this as a exploring / learning / teaching experience.
Peter, who believes that another’s actions doesn’t justify my own.
The creatives behind the campaign where stupid. They should of known that they needed model releases.
I worked in a govt. department in Australia where we regularly use staff photos for publications (print and web), cheap talent and no need for a model release. However, we needed a photo of a child for a publication, fairly quickly, so a staff member photographed her children. Everybody involved (print designer, web designer, editor and manager) all asked the same question. “Do we have a model release?” Even though they knew who provided the photo, and yes we did. What I am trying to say is most people in print and web in Australia do know about needing model releases. So why did Virgin stuff it up so badly?
This is not about IP, Virgin stuffed up with CC but the rights of the people in the photograph. I am no lawyer, but my understanding is you can use a photograph without a model release/s for editoral/factual reporting ie to illustrate an article on what happens in lifts at SXSW. But you can not use a photograph for advertising (implying support for a product) without a model release.
Molly go get ‘em, you are entitle to recompense for the misuse of the image and some people at Virgin and their advertising agency need their butts kicked.
Molly you are not the only one getting slightly ticked off about the photos used. Another photo features a girl whoo is still a minor. Her brother is looking into the situation you may want to email him directly damon AT teacherjames.com.
An agency developed the campaign http://www.hostville.com.au is the agency in question. They seem to be very happy with the results that their campaign is attracting which makes the photo usage more interesting.
Bottom line even if they can wiggle out of the problem with the Creative Commons License Virgin looks like cheap jerks so I would also contact Virgins inhouse people and make them aware that they are starting to look like cheap SOBs. That might be the biggest issue regarding the photo use, you cheap SOBs why couldn’t you offer something up to everyone who’s photos were used.
Molly,
Wow, I’m just discovering this discussion/issue after a few days on vacation.
A few notes:
* Nobody from Virgin (or anywhere has contacted me)
* I meant nobody any harm (or exploitation)
* This sucks.
If there is anything I can do to help, please let me know.
I am the impression that CC licensing does not equal model release. I think I will reconsider CC licensing.
I would have my lawyer contact both Virgin airlines and the agency that produced the advertising campaign.
From Virgin, I would strongly suggest that they get a refund from the advertising agency and pull the campaign until it complies with the terms of the CC license.
I would demand (a large) payment from the advertising agency as your modeling fee, immediate compliance with the terms of the CC license and a very public apology. I think everyone depicted in any of these stolen ( Yes Stolen ) photos should do the same.
This is the most you could expect. What you will probably get is the ads pulled and a nice letter from their lawyers. Heck, you might get them to pay for your health insurance for the next 20 years! Or not. lol
I saw this yesterday when I was sitting next to my mother in a phone store, helping her through the process of buying a new phone. I thought, “wait… is that Molly’s head?”
I really thought I was seeing things at the time, but clearly, it really was your head and not all in my head.
Oh boy, I would make them pay for this campaign!!
What would it be worth? I guess $100.000 would be a fair deal
Call me a cynic, but has this not be done deliberately to create just such a conversation? I think it’s fair to say that Molly is one of the biggest names and influential speakers in terms of the internet. There’s a good reason Bill wants her on his team
By using a picture of Molly from Flickr, it’s pretty likely to get talked about, by making it unflattering its almost guarenteed to get coverage; I mean how many people visit this site? Bit of a Benneton style ad campaign in my opinion.
Enough of this crap, especially the talk of legal cases and how much Virgin Mobile can be squeezed for! Has anyone considered working with CreativeCommons.org in order to resolve this problem. When I post a photo on Flickr, I feel as though I’m relinquishing all rights even if that photo contains me. Would Molly give a damn if this photo were being used commercially by a professional conference organizer to publicize her appearance at a conference? I suspect not. Would she be concerned about being a model if it were part of a book promotion campaign by her publisher? I suspect not. Is it the “bad breath” comment that’s offensive or just the thought that there’s an opportunity to get something for nothing from a multi-billion-dollar corporation. Why could anyone believe that most people (99.999%) viewing this ad would know Molly Holzschlag from one of the queen’s corgis (especially given the angle of the photo)? LET IT GO!
Unfortunately the legal question here would be who is liable, and as a (part-time) stock photographer I’m pretty sure it would be the photographer and not the company that used the ad. After all, to use that CC (attribution) license is to claim that the image is fit for commercial use, and the photographer would need to have the model release to make such a claim. People really shouldn’t use that license if they don’t want to get sued.
@F. Howard, tell that to the poor sod that got the caption, “A stranger is just a serial killer you haven’t met yet”*.
So Molly, yes what happened to you was wrong, but count your blessings you didn’t get that caption.
*As reported by The Australian.
http://www.australianit.news.com.au/story/0,24897,22115934-15306,00.html
I am currently at war with virgin mobile over $41.00 and change that they flat have stolen from me. If you call their 888 number the first recording that is played for you is how they have been voted first in customer satifaction.On what planet was this vote taken i wonder, because you can bet your red wagon it was not earth. i say if you can kick their butt then do it because this company has no regard for anyone’s rights or what is simply commom courtesy. make them pay.
[...] Virgin Mobile asserts that it acted legally, entirely within the limits set by the licensing agreements set by the Flickr users themselves. The users, though, have other ideas. “This is not the kind of famous I had in mind,” says author Molly Holzschlag, whose picture appeared in the ad campaign with the caption “PEOPLE WHO TALK IN LIFTS HAVE BAD BREATH.” [...]
Christina (23 July 2007) “I’m pretty sure it would be the photographer and not the company that used the ad. After all, to use that CC (attribution) license is to claim that the image is fit for commercial use, and the photographer would need to have the model release to make such a claim”
This is a misrepresentation of the CC licences. The licence only provides copyright clearance for the use of the photo – if you actually read it, it makes it very clear that it doesn’t provide any other clearance.
Legally it’s the responsibility of the person using the photo, not the photographer, to make sure they have all the clearances they need. This is because very different clearances are needed for different uses in different countries. Even if the user already has copyright clearance, it’s up to them to make sure no other clearances are needed to to go back to the photographer/model to get them if needed.
It’s just general industry practice among commercial photographers to get model clearances in advance cause it’s easier, and it means they don’t have to chase up people once they know what use is going to be made of the photo.
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