There has been a lot of discussion in the blogosphere this week about the use of a Flickr image posted under a Creative Commons license in a Virgin Australia advertisement. (The parents of the child in the photo, who had not given permission for its use, are suing Virgin, the photographer, and Creative Commons.)
The salient point in this case is that the photographer and Virgin did not have a model release. Anyone who has worked in commercial publishing for more than a week should know that you must have a model release for images with people in them.
There are certainly other issues that this case begs, related to non-commercial use, the millions of Flickr photos with people in them, etc. (see Larry Lessig’s thoughts on this, though he can’t comment on the legal case for obvious reasons), but the main point of this case has nothing to do with Creative Commons or the digital world. If the photographer had taken this photo with a non-digital camera (remember film?), copyrighted it, and sold it to Virgin, the same problem of the lack of a model release would exist.
[Image credit: public domain courtesy of Kimmo Palosaari, from OpenPhoto.net…. interesting sidenote that you won’t find open-licensed photos with people in them on this site]
If the picture is in good taste and it does not false advertise something or some one and it’s put on a public site then the person should know that it is a public site and anyone can see or use it on their site. If it is sold for ads and makes money,the person who took the shot or that is in the shot should get compensation for it .
Just a thought.
When I was in grade school a man came to our school and sade he was going to make a comercial and wanted to take some shots of the kids. So we all were just being our selves and he took candid shots. About a month or two later one of our teacher was in the supermarket and she saw a familier face on a can of Hi-C juice.She purchased a bunch and brought them to the class for us to share and when I saw my face on the can with a big smile,we knew nothing of any documents that were supposed to be prepared. This sold for years like that and we never recieved anything about needing a release or anything,of course iwas in the 5th gfrade at the time and was an instant celeb at school. My mom kept a can in the house and never opened it from 1970.