[cc-community] My photo was used in the magazine / licensing question

jonathon jonathon.blake at gmail.com
Sat Nov 3 22:44:17 EDT 2007


Erik wrote:

> The license I have on it on Flickr is
> Attribution-Noncommercial-Share Alike 2.0 Generic -
> creativecommons.org/licenses/by-nc-sa/2.0/deed.en-us

The major issue you didn't mention is:
* Share-Alike:   Does their usage result in a derived work or an
adaption of a work, or a collection of works?  If it is the first two,
they violated the license.  If it is the third, they did not violate
the license.

> (1) are they allowed to use the photo in their magazine with the license I had selected?

The question is whether or not their usage of the photograph was
"commercial" or "non-commercial".

Personally, I would consider their usage to be commercial, and hence a
violation of the NC clause.

The other position is that such usage is "non-commercial", and hence
not a violation of the NC clause. (Creative Commons Guidelines used to
indicate that such usage was acceptable.  Current Creative Commons
guidelines are less clear.  )

>even by just crediting me by my nickname/webservice?

That satisfies the attribution part.  It must be included.

> (2) are they allowed to use a photo of a person who can easily be recognized on that photo without that person's permission/release form?

It has nothing to do with CC Licensing.   Whether or not the model
release is an absolute requirement, or merely "best practices" is
debatable.  My theory is that model releases are an absolute
requirement.

Greg wrote:

>No, they still need a model release form. There was a case just
recently about that.
Does anyone have a URL about that case?

http://lessig.org/blog/complaint.pdf is a copy of the complaint.

http://creativecommons.org/weblog/entry/7680 is the Creative Commons
Foundation take on being co-defendants.

Article about the lawsuit:
http://www.nytimes.com/2007/10/01/technology/01link.html?ref=business

The photoattorney.com blog about the lawsuit.
http://www.photoattorney.com/2007/09/update-attorney-for-model-in-virgin.html

A slightly different POV from a bloger:
http://saunderslog.com/2007/09/28/attribution-non-commerical-and-allison-chang/

And finally, the Flicker thread on the photographs.
http://www.flickr.com/groups/central/discuss/72157600541608353/
(Opinions in this thread cover the entire spectrum.

Oh, I guess I should list the name of the lawsuit:
Alison Chang et al versus Virgin Mobile PTY LTD, Virgin Mobil USA, and
Creative Commons Foundation.

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

xan

jonathon



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