Family sues over teen's photo in mobile phone ad

Filed under: Gadgets

Back in 2005, Russell Christoff was surprised to discover his own face on the labels of Taster's Choice coffee jars. There he was, breathing in the aroma of a fine cup of joe. "What am I doing on this jar?" he wondered. Then the sometime actor/model remembered posing for that shot many years earlier during a photo shoot for Nestle. He was paid a small fee for that shoot and as far as he knew, that was the end of it. After discovering his image on the coffee jars, he sued Nestle for using his likeness without his permission. He was initially awarded $15.6 million, but Nestle appealed the decision and earlier this year, the California Court of Appeals reversed the award.

Today, 16-year-old Allison Chang finds herself in a similar situation. Except she didn't pose at a photo shoot. Her image was taken by Australia's Virgin Mobile phone company from the photo-sharing Web site Flickr. The photo of Chang flashing a peace sign was taken at a car wash by Chang's youth counselor, who then posted it on his Flickr page. When he posted it, he was required to choose a license attribution for the use of the photo. He chose a sharing license from Creative Commons that essentially allows anyone to use the photo as long as they credit the photographer and say where the photo was taken.

Virgin Mobile Australia is using the photo as part of their "Are You With Us Or What?" ad campaign, which features photos downloaded from Flickr along with ad slogans. For Chang's photo, the words "Dump your pen friend" are superimposed over the photo, and the tag line "Free text virgin to virgin" appears along the bottom of the ad.

Chang and her family, who live in Dallas, say it is the tag line that upsets them. They claim that her church friends have seen it and that is has damaged her reputation and exposed her to ridicule from peers who have Googled her. As for the photographer, Justin Ho-Wee Chong, he wasn't credited as such and his claim of breach of contract is part of the lawsuit, which seeks unspecified damages.

This case does seem to raise some important issues. The fine print at the bottom of the ad contains the Web address for Chong's Flickr page, which happens to include his name. Does that suffice? And what about Chang, who had no control over how her photo was licensed? It seems to me her real beef might be with the photographer, who allowed the photo to be used for commercial purposes. There is an interesting discussion on the topic at Flickr. What do you think?

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AdviceMama Says:
Start by teaching him that it is safe to do so.