(Dallas, Texas) A 16-year-old girl, Alison Chang, was photographed by a youth counselor last April during a church fundraiser and the counselor subsequently uploaded Chang's picture to the photo hosting site Flickr. Advertising executives for Virgin Mobile Australia (VMA) saw the picture and decided to use it in their "Are You With Us or What?" campaign.
The ad created consists of Chang's picture superimposed with the wording "Dump Your Pen Friend" and "Free Text Virgin To Virgin."
The Chang family was less than amused and filed suit in Texas state court against Virgin Mobile USA, Virgin Mobile Australia and Creative Commons Corp., a nonprofit organization that licenses the sharing of photographs from Flickr.com.
The complaint asserts that Chang has been humiliated, embarrassed, frustrated, ... yadda-yadda-yadda, and seeks damages for "injury to her reputation and good name in the community, which exposes her to contempt and ridicule among her peers, neighbors, relatives and friends, and impairs, among other things, her ability to gain acceptance to the universities of her choice."
It's unclear how this case will play out. Presumably, the Chang family is looking for a handsome payday when all is said and done. VMA may or may not fight the case, opting to just write a check. Creative Commons involvement doesn't appear to include verifying that the photographer obtained permission to use the picture. And, above all, the ability of a state court to impose a ruling on a company in a foreign country is being tested.
My legal opinion is uneducated but it sure seems that the Chang family should be suing the photographer for using the photo without permission. Of course, I'm not excluding the fact that Virgin Mobile also has responsibility to assure the property they use has been obtained properly.
A more informed discussion regarding the intricacies of the case can be found at the comment thread here.
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