Exploitation of the Innocent?

A very cute Allison Chang

If you are interested in the future of Flickr photosharing, then this story might worry you. It also doesn't bring out the best characteristics of the US legal system. I'm normally a healthy skeptic about lawsuits involving physical or financial harm, so when people demand cash as compensation for purely subjective and non-tangible injuries such as damage to reputation, or emotional harm, I am very cynical indeed. This lawsuit is no exception. The story is really about four months old, but it just hit the mainstream media:

DALLAS — A Dallas family has sued Australia's Virgin Mobile phone company, claiming it caused their teenage daughter grief and humiliation by plastering her photo on billboards and Web site advertisements without consent.
...
The picture of 16-year-old Chang flashing a peace sign was taken at an April church car wash by Alison's youth counselor, who posted it that day on his Flickr page, according to Alison's brother, Damon. In the ad, Virgin Mobile printed one of its campaign slogans, "Dump your pen friend," over Alison's picture.

The ad also says "Free text virgin to virgin" at the bottom.

The experience damaged Alison's reputation and exposed her to ridicule from her peers and scrutiny from people who can now Google her, the family charged in the lawsuit.

"It's the tag line; it's derogatory," said Damon Chang, 27. "A lot of her church friends saw it."

I'm having a hard time understanding what is supposed to "derogatory" here; the ad isn't clear if it's telling the reader to dump this girl, or if she is the one who should do the dumping. After all, she looks like a cute, friendly girl; why would anyone want to dump her? Moreover, I'm not sure how "dumping your pen friend" would be derogatory anyway, since the advice is just to switch to text messaging. Or is "virgin to virgin" the objectionable phrase? Is being associated with the word "virgin" damaging to your reputation, even among Church friends?

Also:

Alison's elder brother, Damon, said he believed the advertisement showed her as a "loser" and "dumb" and "makes fun of her".

"It is an invasion of her privacy because what they're writing is something derogatory. They're basically saying dump any friends that look like my sister," he said.

(That's your insecurities, Damon. Not ours. You're assuming a lot of things that aren't even in the picture)

The reason why the photo was used "without consent" is that the advertisers didn't need it. Flickr uses a wonderful system, known as the creative commons license, that lets users choose their level of copyright, so they can easily share their photos with others, if they wish. The particular photo in question here was marked "attribution only", which means that anyone is allowed to use it for any reason as long as they credited the photographer for it (which they did).

Allison wasn't the only "victim" either. Apparently, Virgin mobile used a great number of photos from Flickr as part of their campaign. Some people were angry, some flattered. How this one photo, used in Australia only, could cause damage to this girl in the US, is beyond me.

But many believe she has been victimized. One blogger thinks anyone who uses the creative commons license is "dumb" and likens Allison to a victim exploited by pornographers! Another claims she has been "abused" and says the advertisers could have at least tried to contact her. This would be nice, but not terribly realistic. How exactly? Many of the subjects in my photos are unknown to me; I couldn't find their name or address if I tried.

The original photo can be seen here, along with a little discussion. "Chewywong" has over twelve thousand photos uploaded!

I've read through several discussion threads, including here or here, where plenty of lawyers and copyright experts (and some less than experts) weighed in. The consensus seems to be that while they had every right to use the photo, they should have separately secured model rights from the subject (some disagree though, and claim it's the photographer's responsibility to get permission from the model). Many claim you even need permission to use any visible brand-name products at all in your photos. Of course, some lunatics claim the photo is illegal because she is a minor (forgetting that the conversation isn't about pornography), and predictably, other lunatics claim that it's "racist". Bottom line is, there is a lot of legal arguments floating around. To make it worse, the "victim" lives in the US but the "crime" occured in Australia.

Anyway, does anyone want this big legal morass? The whole point of the creative commons license was to allow people, if you wanted them to, to use your photos without worrying about being sued. But people are suing nonetheless. *Sigh*. The idea was to make things simpler, not open up a new field of law all over again.

Let's run down some "what ifs":
1) What if I use a CC picture of a crowd with many hundreds of recognizable faces? Do I need to get a signed release from them all? What if the person/people are deceased?

2) What if I digitally alter the person's photo just enough so it's not clearly recognizable as the original person?

3) What happens if I get a signed release and an identical twin of the subject claims the picture still exploits him/her?

4) What if I simply take a picture of a car on the road. Since automobiles are distinctive, and the logo is often clearly visible, do I need a release from the car manufacturer?

These are all questions that were hammered out for regular photography a long time ago. Let's don't do this for photo-sharing services; if they are free, let them remain free.

Additional notes:

While I have little sympathy for Allison Chang as a victim here, she's not a bad photographer. She didn't take the photo in question, but she does have a Flickr account under the name "aleeviation", and she doesn't have many photos on the site. But the ones she has are very good, especially considering they are from a 15 year old.

Also, an unrelated note on the photo above: The "V" sign seems to be an Asian thing; when I take pictures of Korean kids they all insist on holding up their fingers this way. Now my kids do it too. It's very annoying...

Finally, if you haven't already visited, my own photos are located here.





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