I've given lectures to lawyers about this one: just because you own a copyright, doesn't mean you can do anything you want with a picture, particularly if someone's face is recognized. This comes up today because some minor in Texas discovered a photograph of herself being used in a large advertising campaign in Australia. The photograph was taken by the girls church youth counselor and posted to Flickr.
It seems that people who are foolish enough to put their photographs up on Flickr for "sharing," are finding their photographs used commercially, which is what happened to this photograph. Some moron at Virgin Mobile Pty Ltd., in Australia released a statement that "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." Right. But the subjects of those photographs have rights which they have not necessarily conveyed to a photographer.
Ms. Chang's photograph is now being used to advertising Virgin Mobile. In the U.S., there is absolutely no blanket right to use someone's image this way without their express permission and the damages can be substantial. In one of the articles I read, Ms. Chang's lawyer has handled cases like this before (I'm glad to hear) and expects a substantial return. I did do some brief checking about Australian law, and it would seem that Ms. Chang's position there is similar to the way it is here in the U.S.
I am not so sure the photographer, who didn't grant explicit rights to the photograph, will make out quite as well, but then, I haven't read the Flickr agreement to see how many holes I might be able to shoot through it. The photographer is not being sued by Ms. Chang. Apparently Virgin Mobile USA is.
I do note that the case has been filed in a state court in Dallas, which is the right venue for Ms. Chang, but probably not the right one for the photographer. Even if his theory of the case has to do with a breach of contract issue (Flickr photographers "Creative Commons" agreement has something to do with getting credit for usage, which didn't happen), it would seem to me that would have to be subsumed by any copyright claim that would attach to this issue. I truly would like to see the pleadings in this case.
So, get a model release--although even then it may not be enough. A few years ago, a professional model won at judgment of $15.6 million when he discovered his face on a Tasters' Choice label. Despite the fact that he had been paid for a 2-hour shoot back in 1986, his contract must have had provisions for actual use. The company used the photographs in the U.S. and Canada for many of the intervening years until Russell Christoff ran across a jar in his supermarket. He was able to collect a percentage of company profits for a 6-year period. I don't know what happened on appeal, but the company could not have been happy. Even a settlement would set them back more than the offer they made early on.
I am interested in seeing whether this helps professional photographers who are having a hard time competing with rank amateurs these days because of the Internet. My mother always said, why pay for milk when you're getting the cow for free.