One Texas girl has expectantly found herself as the subject of a marketing campaign…in Australia.

The original photo was taken by what appears to be a friend or staff member of a camp she went to.  Well, apparently Virgin Mobile Australia liked it so much, they took it, and used it for as part of a recent marketing campaign.

What’s the issue?  Well, some people have brought up several supposed problems.  One is copyright infringement.  The other is using the likeness of a person, especially a minor, without a talent release form.  There’s some other smaller, pettier issues, but I’ll go over these two here.

Issue one actually isn’t much of an issue when you look at it.  The photo was licensed under what’s called a Creative Commons license.  Like the copy of Microsoft Windows, Linux, or Max OS on your computer, you have certain things you can and cannot do with it.  Likewise, the photo is the same.

Creative Commons was started several years back as a way to basically promote sharing on the Internet.  Targeted toward creative works – websites, photos, writings, and music, they made several licenses, each of which give a number of combinations of freedoms and restrictions to somebody who might like to use the work.

For example, Dymersion, and most of its associated works, as well as all photos I take (unless they have people in them), are licensed under a Attribution-NoCommerical-ShareAlike Create Commons license.  This means that I retain copyright, but you can use, make derivative works of, distribute, and perform my work as long as you attribute it to me, don’t use it for commercial purposes, and share alike – that is, release it under the exact same license.

So, what’s the issue here in terms of license and copyright?  Apparently none, because from what I’ve read, that particular photo was released under the Attribution license.  In that license, you just have to credit the original creator.  Elsewise, you’re free to use, distribute, modify, make derivative works of, and perform the work, even for commercial purposes.  Worse still, they don’t have to release their derivative work under the same license.  So, the ad is “all rights reserved.”  So, it would appear that from a copyright standpoint, Virgin Mobile is cleared.

Where it gets stickier is whether Virgin needs a talent release form from the girl.  Also, do they need special permission from the parents, given that she’s a minor?  I’m not a lawyer, so I really don’t know the answer to this question.  Some people have said the photo taker is at fault for not getting a talent release when taking the photo.  Personally, I think that argument is bull.  This person didn’t take the photo intending to submit it to use it on a marketing campaign.  He took it, and put it on his Flickr profile.  I see no issue here.

But, does Virgin Mobile need permission to use a likeness?  I’m sure none of this outrage would be existent if there wasn’t a person in the photo.  A picture of some nice mountains?  Sure.  No problem.  But, we have a person here.  So, what is the real requirement?  I don’t know.

So, the family has apparently sued Virgin for damages.  I think this could all have been avoided if Virgin had just asked the photo taker for permission to use the photo.  He probably would have contacted the family of the girl.  Or maybe he would have said no.  Who knows.  As for the lawsuit, I’m getting Virgin will try to get the family to settle.  Pay them off, so the girl has some nice money for college.  Then the issue will be done.

That’s my say on the issue.  What’s yours?

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