Where Did You Get That Picture of Me?

The case of Chang v. Virgin Mobile, filed in a Dallas, Texas court last week may have important implications for companies that collect images of individuals. The case concerns a picture that an adult took of Allison Chang, a minor - apparently with her permission - and posted on Flickr under a Creative Commons -Attribution license. Neither Allison nor her parents knew the picture had been posted on Flickr. The CC-Attribution license grants the licensee a number of rights with respect to the photo, including the right to create and reproduce derivative products, and to display such derivative products. Virgin Mobile subsequently used the photograph in an extensive advertising campaign across Australia. However, when Allison and her parents found out how the picture was being used, it sued Virgin Mobile and Creative Commons for, among other things, invasion of privacy.

The suit alleges that a license "dictates the manner in which third parties may use the protected work", but it does not "eviscerate or supplant a person's independent right of privacy." The suit further states that as a direct result of Virgin Mobile's actions, Ms. Chang lost the exclusive control over her likeness and image and suffered humiliation, embarrassment and mental anguish as well as damage to her reputation.

This case, and others that are sure to follow, are important for a number of reason. First, it will help to define an individual's right to privacy in a digital world. As discussed on Lessig 2.0, a court probably would not have found the photographer had violated Ms. Chang's privacy simply by posting the image. http://lessig.org/blog/2007/09/on_the_texas_suit_against_virg.html#comments. However, extensive commercial use of the imagery might result in the court reaching a different decision.

The case is also important because it helps show the legal challenges associated with a "sharing economy". The spatial community is increasingly seeing the value in collecting and sharing open spatial data. Open data can take many forms. However, as this case shows, not everyone may want data associated with them "shared", particularly when the data can so quickly be altered and use for other purposes.