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The Pornographer, The Virgin, The Flickrite, Her Lawyer

Question: what do a virgin and a pornographer have in common? Answer: they both pick up under age girls on Flickr and have their way with them. If you’re tired of reading about Flickr rip-offs – and who isn’t? – you might feel inclined to skip this week’s blog. But stick with us: this one is worth it.

The pornographer first. A couple of months ago Lara Jade Coton, a 17 year old photography student in England, discovered that a self-portrait shot 3 years previously had been stolen from her Flickr page and was being used as the cover of a video called Body Magic – ‘Hustler’s Highest Rated’ – distributed by TVX Films in Texas.

So Lara Jade wrote to TVX. Having been caught in flagrante, the off-colour cowboys turned on some of that good ‘ol boy southern charm:

‘I’M SURE BY THE END OF THE MONTH YOUR FACE WILL BE HISTORY. WE HAVE STOPPED SELLING THE DVD UNTIL COVER IS REPLACED. WE HAVE FURTHER CHECKED OUT YOUR NAME AND ITS NOT LIKE IT’S A HOUSE WHOLE NAME. ACTUALLY, REMOVING YOUR IMAGE WILL HELP IMPROVE THE SELL OF THE DVD.. SO FAR IT BOMBED. THEY ARE REMAKING THE COVER AS WE SPEAK SO YOUR TEN SECONDS OF FAME WILL SOON COME TO AN END.’

US legal action is neither cheap, nor, for a 17-year-old UK student, easy. And it’s not as if creating a public scandal is likely to damage TVX’s reputation, although there’s always the possibility that might attract the attention of US law enforcement authorities: TVX are using a minor to market pornography after all. That probably explains why most, although not all, of the advertised copies of Body Magic have disappeared from our favourite websites.

So much for the pornographer: but what about the virgin? Actually, that’s Virgin with a capital ‘V’, since this week’s second hijack heroes are Virgin Mobile.

You’d think that one of the world’s best-known brands might employ more reputable marketing tactics than a posse of redneck smut merchants, but in this case you’d be wrong. For this week it emerged that Host, an advertising agency working for Virgin Mobile, were running a campaign in Australia featuring…photographs of a 17-year-old girl lifted from Flickr.

Host clearly fancy themselves as rather clever. Most, if not all, of the pictures they’ve taken from Flickr have Creative Commons licenses, and they’ve included the photographers’ Flickr URLs in the ads. So far, so slick. CC licenses are so poorly written and widely misunderstood that Host and Virgin are probably safe. And anyway, who cares? If somebody is dumb enough to post images with a pseudo-license that invites free republication it’s hard to feel sympathy when they cry ‘rip-off’.

Most didn’t anyway. When alerted many of the victims described the unpaid use of their work as – inevitably – ‘cool’. One – in a new lowering of the bar as to what constitutes celebrity – even expressed her gratitude to Virgin Mobile for granting her a few moments of fame.

But not all Flickrites are that dumb. Once they’d got over the shock of a major ad campaign hijacking their images for free, people started to ask the obvious question: had Virgin or their agents bothered to contact any of the subjects for permission to use their picture? Take a wild guess.

There’s a very good reason why the commercial use of images needs a model release from anyone pictured. People are kind of finicky about being seen to endorse commercial products: porn movies for instance. Virgin weren’t daft enough to use their new Flickr friends to sell porn of course. They just made them look stupid instead, by adding taglines mocking the subjects. ‘Hey, let’s say these dudes have halitosis!’ Yuk, yuk. Let’s call this guy a wanker! Chortle, snigger.

Unfortunately people don’t like to appear stupid, especially on advertising billboards and in full-page newspaper ads: Hey that’s me! No joke. I think I’m being insulted was the first reaction from Alison Chang, the 17 year old featured. And oh dear, Alison has an older brother who’s a film producer, so he knows something about image rights.

And – whoops! – he also knows some copyright lawyers. ‘I actually was involved in a situation like this for a client’ responded one to his inquiries, pointing out that the infringement resulted in a six-figure settlement. But ominously for Virgin he adds: ‘it was for a much smaller business.’

Host and Virgin probably thought they were being so hip and clever. Lift a bunch of CC images from Flickr and add some smartarse captions: nobody’s going to notice, much less complain, and if they do what the heck. Australia’s a long way from everywhere.

But in the cyber-age nowhere is a long way from anywhere. The images are all over the web and can be seen worldwide. Most importantly they can be seen in America, land of the free and litigious. And the Chang family are now pissed-off American citizens with a high profile corporation in their sights after seeing their teenage daughter humiliated for financial gain. American lawyers just love this kind of stuff: it’s got ‘out of court settlement’ written all over it.

In fact, why bother with out of court? The Flickrites have already dug up the most recent US model release fiasco, which resulted in a payout of, gulp, $15.6 million – and that was to an adult who had actually agreed to limited commercial use of his image.

And where does the Chang family copyright lawyer practice? Why, Texas, home of pornographers and US presidents. So when he’s finished deflowering the foolish virgins he may decide to clean up his local smut merchants.


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Comments on this article:

I am an ex-pro musician living in the UK and I know what it is like to be ripped off by unscrupulous people/businesses. I am now a much older serious semi-pro photographer-I’ve been taking pics since about 1970 – and I have recently put up about 300 pics on Flickr!
Since reading the number of stories and incidents that appear to keep reoccurring regarding the alleged ‘theft’ of pics from the flickr site, I am now seriously considering closing my account with them. And I pay them a fee to put my photos in a place where the crooks can just pick them off!
Screw celebrity, I have been there and it put very little food on the table, do me a favour, don’t make me a star just pay me a license fee!
Thanks for all great articles.

Regards

Mark Goodwin

Comment #1 posted by Mark Goodwin at 7 July, 01:31 AM

As those who have been critical of this silly Creative Commons idea said at the beginning, “It’ll all end in tears”. 

I have been roundly condemned on forums for calling Lawrence Lessing’s followers a bunch of Lemmings. My main objection to his ideas is that he is just one academic lawyer who has set out to improve his CV for his lecturing posts. All other changes to copyright law have come from the creative people involved and involved years of work, discussion and campaigning. Lessing and the Lemmings follow blindly one man’s ignorance. His first Creative Commons licence was so badly drafted that it needed a second, and now a third, re-write. 

It doesn’t help creators to learn that Lessing, the instigator of Orphan Works, now has second thoughts.

Bob Croxford

Comment #2 posted by Bob Croxford at 7 July, 09:40 AM

What most people don’t realize is that Lara Jade is not the sweet virgin she has advertised herself as in this hillarious event. She actually offered to sell TVX the image after she was told it was was being removed from any packaging. TVX did not use a minor to market pornography, they simply accessed an image improperly – apologized when confronted and changed the DVD cover immediately offering Jade compensation. The photo was also not taken from her Flickr page, it is on several Freeware sites online. No one has any clue if Lara Jade is in fact a real person, as she refuses to divulge any identification to anyone. She claims to be from England, yet there are many accounts of a homebase in the U.S. I think she smells money & we smell a scam.

Comment #3 posted by TVX Fan at 12 July, 03:56 PM

Using a persons image requires a model release, it does not matter what the photographer wants to do with their rights. The subject of the photograph DOES have rights regarding if they want to be associated with that product.

You can’t just take a photo of Tom Cruise walking down the street and make a billboard “Come Cruise with us”. Yes he is in public so it is ok to take his photo, yes the photographer is allowing you to use the image, no Tom did not authorise you to use his image in that context.

It does not matter if are Tom Cruise or not the same rights apply to everyone. Virgin are in deep deep do do.

Comment #4 posted by Harry Phillips at 16 July, 09:31 PM

It’s interesting that Damon Chang implies the image of his sister makes her look stupid, while the the girl in the picture comments that she finds the caption used in the ad insulting (see the Australian newspaper story here: http://tinyurl.com/yvowc2).

I saw the ad before I read Damon’s comments and didn’t think the girl looked odd, and didn’t find the caption derogatory (I read the caption in a way that made the girl pictured the dumper rather than the dumpee), so it seems that while Damon is saying the image is less than flattering, it is, nontheless, how his sister looks. If he doesn’t like it, perhaps he should have asked his sister’s [former?] friend to change the viewing options on the flickr page so it wasn’t publiclly viewable and wasn’t offered for re-use under a CC licence.

Comment #5 posted by martha farquhar at 28 July, 02:32 PM

CC licences are well-written and clear. If the rights you wish to provide are not those of a CC licence then use another. The most restrictive licence or absence of one does not of itself prevent unauthorised copying and reproduction.

Comment #6 posted by AM at 30 July, 12:43 AM

“CC licences are well-written and clear.”

Which is why we are now seeing version three in as many years; because one and two were so badly written. As I wrote above Lessing and his Lemmings are blindly following the stupid thoughts of one man. All other changes in ideas to do with copyright involved many committees, many people and many years of thorough discussion, CC is half-baked and downright damaging to our culture.

Giants who were involved in copyright law including Mark Twain, Charles Dickens and Anthony Trollope must be turning in their graves at the activities of CC dwarves.

Comment #7 posted by Bob Croxford at 2 August, 07:33 PM

While it’s great to dream about multimillion dollar out of court settlements, and quote cases that happened in an American court, Virgin Mobile acted 100% within the bounds of the Creative Commons license and Australian law.

The Trade Practices Act which concerns the use of images in advertising only restricts images being used if they show the person using or endorsing a product similar to the one being shown.

As for the model being under 18? It doesn’t matter. Australian law dictates that as long as the model is not depicted in a sexually suggestive or provocative manner, you can use their image as much as you want – regardless if they’re 8 months, 8, 18, or 80.

So Virgin have done nothing wrong in that they’ve followed Australian law 100%.

Matt

Comment #8 posted by Matt at 9 August, 03:02 PM

“Lessing and his Lemmings are blindly following the stupid thoughts of one man.”

Are you seriously trying to say that a reasonable, moderately intelligent person, spending half an hour reading the CC website would be unable to understand basic issues such as whether they were choosing a commercial or non-commercial license? The majority of Lessing’s followers have an excellent idea of what they are doing and why they are doing it.

“CC is half-baked and downright damaging to our culture.”

In as much as the oversupply of talented amateurs is eating into your profit margin then sure I agree with you. When you say “our culture”, ask yourself carefully who you are including in that… not me, that’s for sure.

As for the model release, that’s an issue well outside anything the CC was designed to cover. Virgin may be in trouble over that one, depends on whether Texas law or Australian law covers this case. This is not a Copyright issue anyhow, it’s a human-rights issue (right to privacy) and Australian law provides only minimal guarantees of human rights.

Chance of success against Yahoo is about zero.

Comment #9 posted by Tel at 25 September, 06:06 AM

Is is not a big surprise why the advertised copies of Body have disappeared from our favorite website. The rights you wish to provide are not those of a CC license.

Comment #10 posted by Dylon at 21 August, 09:31 AM

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