It seems Virgin Mobile used a photo they found on Flickr for billboard and web advertising, using the tag lines “Dump your pen friend” and “Free text virgin to virgin” along with the photo. Apparently Flickr has this “copyright consent” form that the photographer can allow anyone to use a photo, and the photographer, a counselor, had checked that form.
I’m quite certain the intent of that copyright form is to allow people to use photos on their websites, blogs and My/Face pages without having to beg for permission, not for a corporation to obtain and save thousands of dollars in rights fees, which they would have had to pay a pro for the use of the photo.
But more importantly, any time you use a photo of a recognizable person or private property in advertising, you have to get a model or property release from the model or property owner. And in the case of the 16-year-old girl in this photo, they would need a minor release signed by her parents. Sometimes a release is obtained by a photographer, but it’s still the responsibility of the company to make sure the photo is “released” and can be used for advertising.
(Releases are not required for “editorial,” such as a newspaper or magazine article, as long as the photo does not improperly defame the person.)
There’s plenty of blame to throw around on this story. Flickr needs to make the meaning of its copyright form clear to its members, and businesses need to realize that copyright isn’t the same as “released.” And a photo from an amateur photographer is rarely “released!”
It just goes to show that businesses who should know better, don’t, and that the public needs educated as well. If you are posting your photos to public sites, think about how they might be used.