Virgin Mobile + Flickr = Lawsuit? (Flickrgate)
Virgin Mobiles latest campaign Are you with us or What which covered press, outdoor and online has been using photos from Flickr that were under an attribution creative common license. So as long as you credit the photographer you can use the photo for free for any use. Sweet deal for the agency as photographers can be expensive. Damn if only Herb Ritts used Flickr.
So nothing wrong so far, an email to the photographer or a free phone would have been nice, but nice doesn't make the world go round. What is causing all the problems is that the photographers didn't get model release forms for the people in the photographs. Most budding photographers wouldn't even know what that is or need to. Not only did Virgin Mobile fail to get photos with models releases they insulted some of them with the actual ad. They did a double whammy with the image above the girl is 15 years old. Ouch.
Note: The message from Host is that for the ad above "the idea is that the girl in the particular ad is the dumper, not the dumpee."
To me that gets lost in translation.
While bloggers and the Flickr community are up in arms, none of them are lawyers and this could all fizzle to nothing. Virgin seem to have changed all the photos on the website Are you with us or what.com.au to remove any faces. Lucky cats don't have lawyers :)
I've spoken to a few other agencies about this issue and the general consensus was "Yeah Flickr is a great place to get free photos". You even break copyright law by basing vector artwork on a photo you don't own copyright for see here. Although this is a lot easier to hide and harder to prove.
As an active Flickr user for many years I have had my photos used for commercial reasons but each time I have been paid a small fee for my trouble. Usually around $100. Virgin Mobile could have avoided any negative press by just paying a partly fee to those who agree and opting to not use photos for those who don't.
If you want to read more about this then check the article in the Australian, the offending Pen pal photo, a Flickr group discussion where even Flickr's GM weighs in, or here where a representative of Virgin Mobile's advertising team apologizes (slightly) or just Google it and read for hours.
Note: I contacted Host a month ago on this issue but failed to get their side of the story.
Update: July 23, 2007
"Flickr is about providing a platform for photographers to reach new audiences. As such the decision to feature Flickr photography was based on the desire to champion a vibrant, current, online community. It was part of an approach designed to reject clichÃƒÂ©d 'advertising' imagery in favour of more genuine and spontaneous shots. It is typically Virgin to embrace fresh initiatives and the democratic spirit of Flickr matches the inclusive nature of our 'Are you with us or what?' campaign.
The images have been featured within the positive spirit of the Creative Commons Agreement, a legal framework voluntarily chosen by the photographers. It allows for their photographs to be used for a variety of purposes, including commercial activities. All of the photographers have been accredited in the adverts."
Update : July 24, 2007
So to sum up:
Using photos with an attribution license is legal.
Not telling photgraphers you are using their photos on a nationwide campaign seems like a unfriendly oversight that could have avoided some bad juju.
Not getting model release forms signed by the people featured in the photos is a costly legal grey area.
Also, what happens if the photographer changes the license later at a later date? In this case, Virgin Mobile wouldn't know of the change in an image's status, because it never made contact with the photographer, and as such the photographer would be unable to inform them either.
I wonder if Getty Images or the other stock libraries have seen a drop in profits thanks to Flickr?