(Free) culture clash

I am not a lawyer. This is not legal advice.

There's a story doing the rounds in the blogosphere at the moment about the latest advertising campaign for Virgin Mobile Australia, put together by Virgin and a couple of advertising firms. The story is to do with the campaign's use of images, mostly Creative Commons licenced ones, sourced from the photo sharing website Flickr. The campaign started making waves when it appeared in June, catching the eye of Flickr users late in the month, and being carried by The Australian newspaper today in their IT section. It's all about a very hot topic in free culture circles at the moment: the interaction between different types of intellectual property rights in relation to free content.

The story began when Flickr user Brenton Cleeland posted a photo of a bus stop billboard showing one of the ads, featuring a picture of Flickr user Alison Chang with the caption "DUMP YOUR PEN FRIEND". This is the original image of Chang, uploaded by Justin Wong, and released under a CC-BY 2.0 licence. It's hard to see, but the fine print on the billboard gives the photo's URL on Flickr.

The campaign uses many more photos just like this one. The captions that are shown alongside the images are significant. Take this one for example, in which a photo of some people chatting in a lift is superimposed with the caption "PEOPLE WHO TALK IN LIFTS HAVE BAD BREATH". A Flickr user captured two of the billboards here, see what you make of those captions.

This is where it gets interesting. While this photo and the others appearing in the advertising campaign seem to have been used in accordance with the terms of the licence, it's an open question whether the use has infringed any other rights. According to The Australian, Virgin (and the advertising companies) didn't ask permission from the photographers or the subjects before using the photos. But does this mean anything?

The Creative Commons licences, like other free content licences, relate only to the economic rights that the creator of a work has (the rights that are generally referred to as "copyright"). But intellectual property law covers other rights too. Possibly relevant here are moral rights, a group of rights which, generally speaking, remain with the creator of a work (even if the economic rights are transferred to someone else). These are essentially the right to be attributed as the creator of the work, and the right to the integrity of the work.

Australia now has a pretty much Berne Convention type implementation of moral rights. At least in the Australian implementation, the moral right of attribution is satisfied if the creator is identified in the way that the creator has specified; given that the CC-BY licence sets out a method for attribution, which providing the URL to the photo may satisfy, the uses here may be ok in this respect. A different question is the moral right of integrity of the work; there hasn't really been any case law in Australia on what constitutes derogatory treatment of the work, so it would be interesting to see how a court might approach the use of these photos in this advertising campaign, particularly given the captions that have been put alongside the photos.

So there are questions with respect to the rights of the creators, but what about the rights of the subjects in the photos? This is probably the more pressing question, since it is the subjects who are really copping it in this ad campaign, what with those suggestive captions. Many jurisdictions recognise personality rights, which can protect subjects in this type of situation; in Australia, like in other common law countries, this is done in a particular type of way through passing off, traditionally a tort but which in Australia is fairly robustly protected in trade practices legislation, which allows both for civil suits and intervention by the ACCC.

Andrew Nemeth, a (no-longer practising) solicitor from New South Wales, gives a pretty good rundown of the legal issues around photography in Australia, and even touches on the Virgin issue. But, as he notes, while the trade practices legislation would certainly seem to apply in this type of situation, the kicker is jurisdiction:

"The story would typically end there, except for one thing — these particular images were not taken in Australia and neither photographers nor subjects were Australian citizens. Which unfortunately places them beyond the jurisdictional reach of the TPA or any other Australian law prohibiting unauthorised use of a person's image. If the photographs were taken here, then the subject would have a case. If they were taken overseas of an Australian citizen, again the subject would have a legitimate complaint. But foreign person + foreign photographer + foreign location?…

Nyet.

Clearly the Virgin Mobile people did their homework. You apparently can use unauthorised images of people to sell products, just make sure they're foreigners photographed overseas! Well done guys, very slick."

The wording of the latest version of the Creative Commons licences - which contain something of an acknowledgment that moral rights exist and users of freely licenced content should make sure that they respect them - has attracted plenty of discussion on the Wikimedia mailing lists of late. The interaction between freely licenced content (which deals exclusively with the economic rights of copyright), other areas of intellectual property law, and even other fields of law that relate to how intellectual property can be used (like personality rights) is bound to be the source of many interesting legal questions in the years ahead, as free licencing becomes more and more prominent. Not to forget the social implications; Creative Commons is copping flak from some quarters for not educating their users enough about just what the implications of licencing works under the CC licences are. There are some Flickr users who are now justifiably concerned about just what they've got themselves into by sharing their photos online under free licences.

It remains to be seen what legal responses there will be to Virgin's campaign, but there's no doubting that situations like this are just the tip of the iceberg for the proverbial free culture ship in the IP law sea.