I have, compared to other Flickr users, relatively few photos on Flickr. The default licence I use to publish my pictures is a CC-BY-SA licence (Attribution-Share alike Creative Commons licence), as is that of this blog. Wiht a few exceptions. From the very beginning, I have never published the picture of a person, whether known or unknown to me, without keeping all my rights. I must say that I never really "thought" about it very thoroughly, it just seemed to be a "good" thing to do altogether.
Today Stephen published a blogpost about the last Australian ad campaign from Virgin Mobile. In short, they used Flickr pictures licensed under the Creative Commons Attribution licence. Which require...attribution, and nothing else. So far so good, CC-BY is a noble license and a very free one at that. Other CC licences are not "as free" although I must say that this whole business of free, less free and free-er tends to have shifting boundaries within the Wikimedia community, depending on the phases of the moon (cough cough fair use). But that is not my point here.
So. Virgin Mobile Australia and/or its advertising agency think  ...
OK, we've got 1 million galleons to make this ad campaign, how can we spend them? A few gals and guys probably get around a table, smoke a lot of cigarettes and/or chew a lot of gum, drinking sodas and lots of coffee. They've got their feet up on the table and their brains are smoking. Suddenly one comes up with this brilliant idea
are you with us...or what? and explains the whole concept, with pictures on a flipchart and stuff. Everybody claps, the client is happy. Ok, let's go. Then comes the work of the art department in the advertising agency. They sit and sit for ever, trying to look for the right pics in their Getty Images CDs and their pool of photographer's books but all of them are way too cute. Too perfect. They need something more... you know, more like the general user. Real. Flickr comes to mind. And suddenly one realizes that on Flickr, with the right licence, not only you get exactly the pictures you need, but you get them for free. Transe in the art department, they've just saved the client (and the ad agency) a bunch of trouble (I men, staging those pictures would have been... a hell of a lot of time) and a bunch of money. So they go and chose pictures from Flickr. And they start by taking turtles, or neon signs but then decide that a little life would be better and they start using people. Not just noses or eyes, but real people, who can even recognize themselves. And they add funny slogans to go with the pictures.
And that's where I personally find that the limits of "free" are. I mean, I don't care if *I* put a picture of myself on the web, and *I* put it under a free license (authorizing commercial use and the lot) and then *SomeCompany* comes and uses it and make huge bucks out of it. Frankly, it is my responsibility, my face, my picture. Too bad for me if they use it to make fun of my big bones or my crooked nose. But I *do* care about the fact that this huge corporation uses a picture I make of my sister/my best friend/my neighbour/a stranger in the street without asking them what they feel about it.
Seriosuly, if they just wanted "more genuine and spontaneous shots", why didn't they go and do them with their sister/their best friend/their neighbour/their stranger in the street? I mean, I'm pretty sure that these people have enough candids of their own in their dusty drawers not to have to go and fish in the lives of "unknown people" who have asked nothing.
I am not of the kind that would say that they should have "paid" anything to those people, and I will avoid going into the details of whether or not Virgin Mobile Australia had the legal "right" to do this. I am however convinced that an email to the author of the picture asking
would your friend mind if we used their picture? was really not too big a step for those people. And I am pretty damn sure that the majority of those whose picture (the subjects, not the photographers) have been used would have been pretty thrilled to have their picture in an advertisement campaign, even as far as down under. Unless of course, the whole point was to play on the buzz that this whole story is generating. I am afraid though, that the gamble is a little high, the same "genuine and spontaneous" people that take shots and put them on Flickr are probably those who'd buy (or not buy) Virgin Mobile's services. Oh well. The mysteries of marketing are way more troublesome than I can fathom.
In any case, I hope such mishaps will not deter people from putting their pictures under a free license. It is easy to stretch the confusion that putting your picture under a free license is like "giving up all your rights". It's not. It's choosing to make sure your work is available for other people to use under easier conditions than the very complicated and very restrictive laws of normal "copyright". But of course, if companies of the size of Virgin Mobile only see things "free" as in
I don't have to pay a buck for it or even lose a minute to get it, then copyright has a long long life to live yet.
The sad moral of the story is that in the end, everybody loses. Virgin Mobile because they get all this bad press, Virgin Mobile again because by "abusing" (even if just morally) the fact that a photo is under a free license, they're scaring away people from putting their work under a free license, and the free movement because free licenses are tagged with something like "too free and not respectuous". Well done Virgin! You may have won a few bucks this time (and this still needs to be cleared, because if any of the lawsuits actually happen, you might end up paying way more than you would have by "buying" all those pictures to start with), but you lost many more in the long run.
Well, actually, I win, because now I know why I don't put those pictures of mine that represent people under a free license. Just so that companies like Virgin Mobile don't end up using their smiles the wrong way.
Ah, and for those purists who believe that moral rights should be abolished and that they impeed the distribution of free material, I'll only say that my strong belief is that, as the French saying goes, "la liberté des uns s'arrête où commence celle des autres" (One's freedom stops where others' freedom starts). This whole post bears a strong "moral" point of view (not legal, in any way). In my opinion, Virgin Mobile should not have been using those photos without asking the people on them if it was "OK" to do so.
 Any ressemblance to real persons, living or dead within the following paragraph is purely coincidental.
 can you tell I'm reading Harry Potter?