How "Right Click Save Picture As"
Can Harm Your Company

The Dangers of Pulling Pictures off the Internet to Promote Your Product. Wisconsin companies must make sure to obtain proper releases and licenses before placing any pictures on their packaging, or face stiff penalties.

Introduction
Recently Virgin Mobile Australia (“VMA”) ran an ad campaign using a picture of 16-year-old Texan, Alison Chang. Her youth counselor, Justin Wong, photographed her and posted the picture on Flickr.com, a website dedicated to sharing photographs. All of Wong's Flickr photos are covered by a license from Creative Commons, a nonprofit that seeks alternatives to more restrictive traditional licenses of copyrighted works.

Ms. Chang learned of her public humiliation when an Internet user posted a copy of the ad on Flickr believing Wong would be excited to see the success of the photo.  Unfortunately, Mr. Wong had no idea that others could use the photo.  Unfortunately for Ms. Chang, VMA used the photo in a national advertising campaign with the slogan “Dump your Pen Friend” making her appear “uncool.”  “Pen Friends” in Australia are what Americans refer to as “pen pals.”

In response, Ms. Chang and her family filed a lawsuit against VMA for libel and invasion of privacy, a type of right of publicity claim, for using the photograph in their ad campaign. Ms. Chang claims that VMA invaded her privacy by using her photo for commercial purposes without her permission. Mr. Wong, also a Plaintiff in the action, alleges that VMA did not comply with the terms of the license, which required VMA to properly attribute the picture to him. As a result, the photographer believes that the license is void. He further claims that the Creative Commons license is not sufficiently clear regarding the use of photos for commercial purposes.

VMA maintains 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. VMA 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.

These facts raise important issues involved with the use of photographs and other identifying information for commercial purposes such as packaging and printing. In this article, I will discuss the right to publicity and the role played by the Creative Commons license in this case.  If you have questions related to the other claims advanced in this case, please contact our office.

Essentials for Using a Photograph

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, known as a copyright.  You also must have a release signed by the model from the individual in the photo.  The copyright or license to use can be directly obtained from the photographer.  The release must either be provided by you or must have been obtained by the photographer prior to selling the image.

Copyright of 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 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 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.  However, you must not assume that all photographs on the internet are in the public domain or have Creative Commons licenses.In the 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 VMA did when it found Ms. Chang’s picture on Flickr.  Therefore, unless VMA somehow violated the license agreement, it most likely had the necessary copyright license for the photograph.

It might be wise for the Creative Commons license to be more clear regarding the rights of people who appear in photos, indeed their own FAQ page regarding this case demonstrates that they are unhappy that Mr. Wong misunderstood the license he selected.  However, as should be clear to almost everyone, you must never sign or agree to any sort of writing unless you understand the consequences.

Wisconsin Rights of Privacy and Publicity

In Wisconsin, the Right of Publicity stems from the Right to Privacy, in fact both are codified in Wis. Stat. §995.50.  The statute recognizes an individual’s right to control the use of his or her identity for commercial purposes.  In the case of a minor, the parents or guardians must consent to the use.

Though the Chang lawsuit was brought in Texas, we can still use similar facts to demonstrate how a Publicity claim would work in Wisconsin.   VMA used Ms. Chang’s image for use in advertising their services. It appears that neither Mr. Wong nor VMA acquired Ms. Chang’s consent before beginning its advertising campaign. VMA maintains that they did not need to attain a model release from Ms. Chang because the photograph was licensed under the Creative Commons license allowing for commercial usage.  Note that in Wisconsin, since Ms. Chang is 16 years old, VMA and/or Mr. Wong would have had to obtain her parents’ permission.

The weakness in VMA’s argument is that the Creative Commons license only applies to the copyright for the photograph.  Though Mr. Wong may have granted a copyright license to

VMA for commercial use of the picture, the Creative Commons license could not have given away Ms. Chang's right to publicity, and right against invasion of privacy.

VMA needed a signed release to use her photo, as this was plainly a commercial use, meant to sell cellular services, and not a non-commercial use. A non-commercial use may include the use of the photo in a media presentation on the lives of churchgoing teenagers. 

In sum, because VMA did not procure a release, it may be liable for very substantial damages. Ms. Chang is a very sympathetic plaintiff not just due to her age, but also due to the nasty tone of the ad that featured her.  If this case were properly before a Wisconsin court, it seems likely that the court would find that VMA violated Wis. Stat. § 995.50(2)(b).

Conclusions

Internet users should be wary of using online photos for commercial purposes, without seeking the consent of the persons in those photos. This is the case even if they are covered by a Creative Commons license. Remember that before you use a photograph in your advertising or on your packaging, you need to either own or license the copyright of the photograph.

Further, if you wish to use someone’s name, image, voice, or other identifiable attribute in advertising or on your packaging, you must first obtain that person’s consent. Often this is done by having the individual sign a simple Release granting you these rights.

Gerbers Law has experience in drafting these types of releases as well as obtaining copyrights and negotiating licenses.  If you have any questions do not hesitate to contact us.