Late yesterday, the Associated Press shipped the story about how the family of Dallas girl Alison Chang was suing in state district court Australia's Virgin Mobile phone company, claiming the company had used a photo of 16-year-old Alison in an ad campaign without her consent or knowledge, causing her "grief and humiliation." The photo was taken in April at a car wash and was posted to a Flickr page, from which Virgin Mobile took it for this ad, which Alison's family finds more than a little inappropriate.
As it turns out, her family's been on the case for months. If you go to this Flickr page, you'll notice folks there have been up in arms about this very ad campaign for the past three months. And among those who posted to the site way back in June was Damon Chang, Alison's 27-year-old brother and a film producer (if I have my Damon Changs right), who said he consulted with attorneys in Texas and New York early in the summer and gave plenty of advance notice that a lawsuit was forthcoming if Virgin Mobile didn't do something pronto:
My name is Damon Chang. I'm the older brother of Alison, who is the girl being depicted in the discussed picture. I am not an attorney, but I am a film producer and my understanding has always been that a model release is needed for any commercial use of images, videos, etc. (ex: "the example of cameras in Time Square is valid, but different because those thousands of people are not "featured" in the video/image, whereas my sister is the only person featured and depicted in her picture).
In this matter, I consulted a few attorney associates of mine. One attorney licensed in Texas who practices in copyright law said:
"The CC license applies to the copyrights--the rights of the photographer as owner of the photo; my understanding is that is does not refer to the rights of the person depicted in the person. I would contact Virgin Mobile, demand some money, etc. Do it in writing. Address it to their legal dept. The other issue is that she is a minor, so technically they need your parents' permission too.
I actually was involved in a situation like this for a client; it was for a much smaller business. The person in the photo got about $25,0000, but her image was used for a long time in many contexts."
Another attorney from NY said:
"I will look into it. I would first write a "cease and desist" letter, so if they want to throw her some kind of offer they can at least find her. Let me see what I can figure out."
I'm speaking for my sister and my family in this matter. We're going to seek out legal counsel and contact Virgin Mobile. My sister is just a kid in high school, and while Virgin Mobile isn't "defaming" her character, this is still not cool. They should have at least let her and the photographer know about it."
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Apparently, Virgin Mobile didn't make an offer, or the Changs didn't ask for one. Because instead of a settlement, now you have a lawsuit. --Robert Wilonsky