Last week I blogged about Virgin Australia's latest advertising campaign, "Are you with us or what", and Virgin's use of Creative Commons licensed images in this campaign. Today there is an article in The Australian titled "Virgin 'in the wrong' on ads". The article contains comments from people unhappy about how they have been depicted in some of the images used by Virgin.

It is important to note that the person in the photograph is not necessarily the copyright owner. Generally it is the photographer that is the owner of copyright, though some exceptions apply, notably, in the case of commissioned photographs. As a result, rights may not arise for the individuals in the photographs under copyright law (they will have the look elsewhere, such as trade practices law, defamation or privacy). This 'photographers and copyright' information sheet by the Australian Copyright Council provides a useful overview.

Theoretically, the copyright owner in all of these cases has chosen to attach a Creative Commons attribution license (which allows for commercial use).

While there are multiple legal issues in play here, I am interested in whether Virgin has satisfied their requirements under the Creative Commons license.

For example, the first image that they use is a turtle ("websites shouldn't take long to load"). The link available on the bottom left hand corner of the picture goes to the Flickr user's photo page (which happens to contain 1,323 photos). From there, you will have to locate the particular photo in question and click on the photo page (I managed to locate Big Turtle in the Masoala Hall, Zurich using tags). Under 'additional information' you can click on 'some rights reserved' to discover that the photo is licensed under a Creative Commons Attribution 2.0 license. I query if link to the user's page provided by Virgin satisfy the attribution requirements under the license. If you look at the legal code for the license above, Section 4 outlines restrictions to the rights granted under the license:

a. ...You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform...

b. ... You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work...

While 'reasonable to the medium or means You are utilizing' allows for a bit of flexibility, it appears to me that Virgin Australia could have done more by way of attribution. They provide a link to the author's Flickr page, however you still have to sift through this to find the actual photo. Only after you find the photo do you see which license is attached (and other details such as the title of the photograph). I am not sure that providing a link - which has a link - which contains a link to the license constitutes 'including a copy' of the license/URI as required under the 4 (a) license. Similar issues arise with regard to 4(b). I would love to hear what other people think about this issue and whether they believe the terms of the licence have been breached.

The Virgin scenario bears a (slight!) resemblance to a Canadian case involving a photographer and the use of a CC licensed image by an MP (the photographer disagreeing with the political views of the MP). Attribution issues were raised here as well.

It is a shame that this and other issues have presented themselves in reference to a campaign that is in some respects an innovative and interesting use of Creative Commons licensed materials.

(Pictured: "Big Turtle in the Masoala Hall, Zurich", alex.ch, available under Creative Commons Attribution License 2.0 license.)

Big thank you to Catherine for her help with this post!

Labels: abi, licensing