If you are in business, chances are that you are involved in some sort of advertising or promotion for your goods and services. Say that you give out some of your products to a celebrity and photograph her with the products. Can you now use that photograph in your advertising? Or perhaps you learn that a famous football player has been using your product. Can you use his name in promoting your product? What if you just want to use the name or picture of an individual with no claim to fame? And what if you didn’t take the picture yourself and instead just found it on the Internet?
“Dump Your Pen Friend” – The case of Alison Chang and Virgin Mobile
The issues surrounding the commercial use of photographs are well illustrated by the interesting case of 16-year-old Texan Alison Chang. Her youth counselor photographed her displaying the peace sign and posted the picture on Flickr.com, a website dedicated to sharing photographs. Ms. Chang later learned that Australia’s Virgin Mobile used the photo in a national advertising campaign with the slogans “Dump your Pen Friend” and “Free Text Virgin to Virgin.” In response, Ms. Chang and her family filed a lawsuit against Virgin Mobile Australia for libel and invasion of privacy, a type of right of publicity law claim, for using the photograph in their ad campaign.
Virgin Mobile Australia has maintained that they did nothing wrong. They point out that when the photographer uploaded the picture to Flickr, he chose to license the photograph through a Creative Commons license that allowed anyone to use the photo for commercial purposes. Virgin Mobile will defend itself in court by arguing that it was the photographer’s job to get Ms. Chang’s consent before he licensed the picture for commercial use.
The photographer, who is also a plaintiff in the lawsuit, has alleged that Virgin Mobile Australia did not comply with the terms of the license, which required Virgin Mobile to properly attribute the picture to him. As a result, the photographer believes that the license is void. He is also suing Creative Commons, alleging that Creative Commons was negligent in failing to educate and warn him about the license he selected.
This may sound like a bizarre situation, but it raises important issues involved with the use of photographs and other identifying information for commercial purposes. Below, we’ll discuss the right to publicity and the role played by the Creative Commons license in this case. (If you have interest in the libel issues raised by this case, you can also check out our article on Defamation on the Internet.)
Using an Individual’s Picture for Commercial Purposes
Typically, before you can use a picture of someone in an advertising campaign or for other commercial purposes, you need to have the right to copy the photograph (a copyright license from the photographer) and the right to use the individual’s image (typically achieved with a “Model Release” from the individual).
Copyright in the Photograph
To use a photograph in an advertising campaign or in conjunction with your goods and services, you first need to have the right to copy and make derivative works of the photograph. If you are an individual business owner and took the photograph yourself, then you own the copyright. If an employee took the photograph as part of his or her employment, then the business owns the copyright. However, if you simply found a picture on the Internet or in a magazine, then you will need to get a license from the original copyright holder.
In some situations, you might come across public domain photographs, which are free to copy, or you may purchase a blanket license to use stock photography from a website or CD-ROM for commercial purposes. In these cases, it is not necessary to seek out an individual copyright holder to get a license because you already have the rights to copy the photo and put it into your advertising. But in any other situation, you must track down the copyright holder and get a license to use the photo in your advertising.
In the Alison Chang case, when the photographer posted the picture on Flickr.com, he chose to license it for commercial purposes by selecting a Creative Commons Attribution license to apply to the picture. Anyone who downloaded the photograph while it was licensed this way was free to use it in advertising goods and services. This is precisely what Virgin Mobile did when it found Alison Chang’s picture on Flickr, so unless Virgin Mobile somehow violated the license agreement, it did have the necessary copyright license for the photograph.
Right to Publicity Law in Illinois
Most states either have a common law tort called invasion of privacy or a statutory right to publicity that prohibits the use of an individual’s name or likeness for the benefit of the user without the individual’s consent. In some states, Illinois for example, this right is limited to commercial uses. But in other states, it applies to any beneficial use, whether commercial or not.
The Illinois Right to Publicity Act (“IRPA”) supplants any common law invasion of privacy tort for appropriation of name or likeness. The IRPA recognizes an individual’s right to control the use of his or her identity for commercial purposes. The Illinois law also applies to both living as deceased individuals as well as commercial entities such as corporations, partnerships, and trusts.
Under the statute, “identity” includes the person’s name, signature, photograph, image, likeness, voice, and any other identifiable attribute. The prohibited commercial purposes include use of the individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for purposes of fundraising. If a court finds someone liable for violating IRPA, then the following remedies may be awarded: actual damages, profits derived from the use, and even punitive damages.
The lawsuit in the Alison Chang case was brought in Texas because she lives in Texas and the photograph was taken in Texas. However, we can see how the Illinois Right of Publicity Act might apply if the activities in this case took place in Illinois.
Virgin Mobile appropriated Alison’s image for use in advertising their services. It appears that neither the photographer nor Virgin Mobile acquired Alison’s consent (a model release) before Virgin Mobile began its advertising campaign. Virgin Mobile maintains that they did not need to attain a model release from Alison because the photograph was licensed under the Creative Commons license allowing for commercial usage.
The weakness in Virgin Mobile’s argument is that the Creative Commons license only applies to the copyright in the photograph. While the photographer may have granted a copyright license to Virgin Mobile for commercial use of the picture, the Creative Commons license could not have granted Virgin Mobile Alison’s consent to use her image for commercial purposes.
If this case were properly before an Illinois court, it seems likely that the court would find that Virgin Mobile violated Alison’s rights under the Illinois Right of Publicity Act.
Lessons to be Learned
So what lessons can a business learn from the dispute between Alison Chang and Virgin Mobile?
Remember that before you use a photograph in your advertising or on your goods, you need to either own the copyright in the photograph or license the photograph from the copyright holder. The Creative Commons Attribution license here applied to the copyright in the photograph and did not grant any further rights!
So if you wish to use someone’s name, image, or other identifiable attribute in advertising or in connection with sale of goods or services, you should first obtain that person’s consent! Often this is done by having the individual sign a Model Release granting you the right to use the person’s name and/or image for commercial purposes.