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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.

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.

EPUK is discussing:

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