UPDATE: "Dump Your Pen Friend"

by Tamera H. BennettOctober 15, 2007

This Blog reported on October 1, 2007 that a North Texas mother sued Virgin Mobile USA, Virgin Mobile Australia, Creative Commons Corp., and Flickr.com. on behalf of her 16 year-old-daughter in state court in Dallas County, Texas for the unauthorized use of her daughter’s image in an ad campaign promoting Virgin Mobile Australia’s services.

A picture of Alison Chang, a 16 year-old high school student, was uploaded to Flickr by her church's youth pastor. This picture was then used by Virgin Mobile Australia in a billboard campaign promoting Virgin cell phone/text messaging products without the consent of Chang.

The attorney for Plaintiff Susan Chang as next friend of Alison Chang and Justin Ho-Wee Wong forwarded us a copy of the Petition filed in Dallas County District Court.

As anticipated, the petition focuses on misappropriation of Alison Chang's image under Texas common law. Such cause of action in Texas is brought as a violation of Invasion of Privacy. One does not have to be "famous" in order for this privacy right to be violated.

What was not anticipated was the Libel cause of action. Libel is found when a false or malicious statement is made in a fixed medium, especially writing but also a picture, sign, or electronic broadcast. The argument is being made that the picture along with the slogan "dump your pen friend" has injured Alison's reputation. Plaintiff is also claiming defendant's actions were malicious.

It was unclear in the original press on this case that the photographer is also a plaintiff. His causes of action may actually carry the most weight. Mr. Wong is suing under a breach of contract theory. Pursuant to the Creative Commons license Mr. Wong agreed to on Flickr, Mr. Wong, as the creator and copyright owner, must receive attribution for any photograph of his that is used by a third party. This condition has clearly been violated by Virgin Mobile Australia.

In my world of helping my clients protect their original works of authorship everyday, "Creative Commons" licenses can sometimes be a little scary. Creative Commons has now been sued for negligence. The pleading states:

Creative Commons owed a duty to Justin Wong, as a user and beneficiary of its license. Creative Commons breached this duty by failing, among other things, to adequately educate and warn him, as a user of the Creative Commons Attribution license, of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use. As a result, Justin Wong has suffered damages proximately caused by Creative Commons's [sic] acts and omissions.

This will be an interesting case to follow. We will keep you posted.