Posted by: Mike A. | September 24, 2007

Screwed by Virgin?

In what might justly be called a first for Creative Commons, a family is suing cellphone carrier Virgin Mobile for using their daughter’s picture in their ad campaign without permission.

Now, I’m not a lawyer, I’m just a humble enterprise marketing professional. I’m not competent to judge, but I’m more than competent enough to ask questions.

How far can advertising agencies go, using Creative Commons-licensed material available off the web?

Was the photographer negligent in not securing a model release for Alison, or was it Virgin’s responsibility to make sure the paperwork stuck?

Was it just too much effort to track down each license-holder and get their personal say-so before proceeding with the ad campaign?

Virgin Mobile asserts that it acted legally, entirely within the limits set by the licensing agreements set by the Flickr users themselves. The users, though, have other ideas. “This is not the kind of famous I had in mind,” says author Molly Holzschlag, whose picture appeared in the ad campaign with the caption “PEOPLE WHO TALK IN LIFTS HAVE BAD BREATH.”

Much of the bad feeling in the air, most agree, would have been alleviated if Virgin Mobile had simply talked to each license-holder before going through with the ad campaign. Maybe they missed the memo, but markets are conversations: every stakeholder has a say. The Web has largely circumvented traditional corporate communications; a relationship engaged solely by ad campaigns and lawyers simply is no longer tenable. Virgin Mobile, so eager to position itself as a cutting-edge kind of company, should have known that. They should have known better.

This case is confusing, because none of the traditional roles seem to matter. “Ad agency,” “client,” “photographer,” “model,” and “audience”. Virgin Mobile’s ad agency took a big risk acting as they did, acting according to the traditional roles while grabbing creative materials from an online community that insists on playing by new 2.0 rules. Now the Changs have shown Virgin Mobile the consequences of their inability to hold a conversation with the community, by branding them with a new role: “defendant.”

The image © its respective owners, whoever the hell they are.

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