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Are Your Personal Photos Ready for a National Ad Campaign?

Remember that time you posted your wedding photos on Flickr? How about that time that you added your portfolio to your blog for a bit of self-promotion?

It doesn’t take a web specialist to recognize the booming growth of social networking as the general public continues to flirt with voyeurism. My dad, my dog, my hairdresser and over 300 of my –ahem- closest personal friends all have their Facebook sites loaded up with photos, videos, poetry and artwork to showcase their interests, talents and personalities. Despite the warning stories of people being fired for what has been seen on their profiles [Okay, the guy who called in sick so he could get hammered in a fairy costume deserved everything he got…], we can’t help but want to show off our lives. But what if the tables were turned? What if someone else was showing off your photos, your songs, your life?

Before you click that upload button again, read on.

On a sunny day last summer, a group of kids got together to wash cars in support of the local church. Justin Ho-Wee Wong snapped a shot of his friend, 15-year-old Alison Chang, as she gave a quick peace sign and a smile. That evening, he added the photo to his Flickr account.

Months later, another user of the photo-sharing network uploads a picture he took of a bus stop ad for the Are You With Us Or Not Virgin Mobile campaign in Australia. The ad, featuring a young woman with a fresh smile and a goofy peace sign, caught his eye because of the Flickr URL source in the bottom corner. He posts the photo saying, "I wonder if he knows that his photo is being used here (most of his photos seem to be using a Creative Commons Attribution license). Anyway – congratulations!"

Truth is, neither Justin nor Alison knew that the photo was being used for a national marketing campaign. When they weighed in on the comments section, Alison wondered if she was being insulted while Justin wondered if Virgin Mobile would give him free stuff.

Over the past seven months since the ad was discovered, the debate has raged on with over 250 comments on the uploaded photo of the ad and 280 replies to the forum discussion about the ad campaign in general. Flickr users were somewhere between up-in-arms, scared stupid and told-you-so…

Justin posted his photo using a Creative Commons (CC) license. Typically, these licenses are used to make your photos more accessible for reprinting or reposting as long as the original is attributed. Think of it as registering all of your photos with a stock service – once they’re in there, it’s not up to you what they’re used for.

Now, in most countries including Canada, the U.S., the E.U., a model release form is necessary for any commercial use of a recognizable image of any person. Given that the photo was posted under the condition that it is fair game, so to speak, Virgin Mobile can likely place the liability back on the photographer who is expected to secure all necessary sign-offs before making his work public.

Alison surely knew that her friend posted the photo on Flickr but it’s unlikely that either had thought of the possibilities of posting her image using the CC license Justin had chosen.

While Flickr does offer the safer alternative of using an All Rights Reserved license, Facebook has this to say about user-generated content:

By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.

Before you click that upload button again, make sure you look good enough to make up for the fact that you could be endorsing adult diapers, fungal itch cream, drug rehabilitation programs, or worse… Yikes.

Play safe!


  1. Rob Cottingham
    Rob Cottingham January 26, 2008

    Very interesting article, Ben — especially as it relates to model releases.
    Just a quick clarification about Facebook: a lot of folks I know have read the passage you cite and immediately jump to the conclusion that “Facebook owns anything you post to it.” But there’s a passage immediately after that makes it clear that’s not the case, and that as soon as you remove any content, they lose all right to it (except to have an archived copy):
    “You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content. Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.”
    Is that your read of the situation, too?

  2. Ben Boudreau
    Ben Boudreau January 27, 2008

    Exactly. They can use what you post until you remove it from their platform. That’s an important thing to mention before every person with a profile starts nervously monitoring new ad campaigns…take down the party photos and you’ll never have to worry again!

  3. Matthew Burpee
    Matthew Burpee December 1, 2008

    A related story… in the beginning of the film Iron Man there’s a blurry photo of a hanger shot by a tourist. It would have only been found if the author tagged it with a Creative Commons license in flickr. It was used with permission and also to his joy.

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