When Copyright and Privacy Collide: A Teenager's Suit Against Virgin Mobile for Using Her Photo without her Permission in an Ad Campaign,
and Against Creative Commons for Alleged Lack of Clarity In Its License

Fifteen-year-old Alison Chang, a Dallas teenager, recently learned that a casual photo taken of her at a church-sponsored carwash was appearing on a billboard in Adelaide, Australia, as part of a cell phone advertisement.

Worse, Virgin Mobile Australia had used Alison's photo to portray someone nerdy and uncool. The image was accompanied by a derisory slogan, and the ad suggested that persons could "dump their pen friend" (that is, pen pal) when they get a Virgin Mobile cellphone account.

The photo was originally posted on Yahoo's photo-sharing site, Flickr, by the photographer, Justin Wong, who was Alison's church youth counselor. All of Wong's Flickr photos are covered by a license from Creative Commons, a nonprofit that seeks alternatives to more restrictive traditional licenses of copyrighted works,

Alison learned of her public humiliation when an Internet user posted a copy of the ad on the Yahoo-operated photo-sharing website, Flickr -- believing Wong would be excited to see his photo's great success.

Now, four months later, Alison and her family are in U.S. District Court in Dallas suing both Virgin Mobile Australia and Creative Commons for damages. (Virgin Mobile USA has also been named as a defendant, but claims it is an independent entity.)

Alison claims that Virgin Mobile invaded her privacy by using her photo for commercial purposes without her permission. She also claims that Creative Commons's license is not sufficiently clear regarding the reuse of photos for commercial purposes.

In this column, I will explain why Alison is likely to prevail on her claim against Virgin Mobile, but not her claim against Creative Commons.

Why Alison's Claim Against Virgin Mobile Is Likely to Succeed

Alison is likely to prevail on her invasion of privacy claim. Privacy rights include a "right of publicity," through which one can prevent the unauthorized commercial use of his or her image. Moreover, while Wong may have given away his own copyright, he did not, and could not, give away Alison's right to publicity, and right against invasion of privacy.

Virgin needed a signed release to use her photo, as this was plainly a commercial use, meant to sell cellphone services, and not a noncommercial use. The latter would include for example, use of the photo in a media account of the lives of churchgoing teenagers or, arguably, Wong's posting of the photo on Flick, where it could be viewed and used without charge (though it also did serve the purpose of promoting Wong's work).

In sum, because Virgin Mobile did not procure a release, it may be liable for very substantial damages. Alison is a very sympathetic plaintiff not just due to her age, but also due to the nasty tone of the ad that featured her.

Why Alison's Claim Against Creative Commons Will Almost Surely Fail

Alison's claim against Creative Commons, however, will almost surely fail. As noted above, the Changs's attorney has argued that the term "commercial use" is too vague. However, since Alison had no license with Creative Commons (only Wong did), she likely has no right to challenge the license terms.

Granted, as a matter of policy, it might be wise for Creative Commons to be clearer, in its license, regarding the rights of people who appear in photos. On the other hand, however, the background law in each U.S. state regarding the right of publicity generally makes that right quite clear - and, again, no photographer can abridge the right of the subject of his image via a contract she did not sign or accept.

The Implications of the Chang/Virgin Mobile Case

The core implication of the Chang/Virgin Mobile case is clear: Internet users should be wary of using online photos for commercial purposes, without seeking the consent of the persons in those photos. This is the case even if they are covered by a Creative Commons license.

While most Internet users are relatively well-aware of copyright issues, they may not be as aware of the less commonly cited "right of publicity." Yet violating that right by using a person's image for a commercial use can be very costly - as I believe Virgin Mobile Australia will soon learn.