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Why is the suit against Virgin legitimate?

I first heard of this case the other day while I was at work when a co-worker sent around an email. I work at an ad agency in Baltimore. The email I received instructed the agency not to use Flickr photos in any ads and included a link to a newscast video talking about this case. The newscast I had heard only spoke about the girl's suit against Virgin for including her photo in their ad without her prior knowledge or permission. My initial reaction to the suit was that it seemed to be on thin ground b/c I was pretty sure that Flickr clearly stated in its terms of service that photos posted on the site were fair use unless otherwise indicated through the use of Copyright or Creative Commons. I then went to Flickr's site to confirm this and couldn't except it definitely says that Yahoo has this right. Are the photos that do not use any of the above mentioned kinds of provisions fair use? Either way, the the party that seemed to be at fault here was the counselor who posted the photo without getting the girl's parents' permission (b/c the girl is underage) to do so and for not being aware of the fair use nature of the site, although I guess it turns out she is one of the people suing Virgin. When I read the email, I had likened this case to a hypothetical situation where my agency might go on to a stock photo site and purchase a royalty free photo with 2 people in it and use it in an ad. Then we later discover that the photographer never got permission from one of the two people in the photo and that person wants to sue. I would think that the responsible parties would be the photographer and possibly the stock site for not demanding to see a release or waiver form. But I would not think our agency or the company that we were advertising would be responsible b/c we acted within the terms set forward by the type of license we purchased for the photo. Am I incorrect about the scenario I described above or is something different about the Virgin case b/c they did not have to purchase a license or b/c Flickr photos are not actually fair use (or both)?

Posted by: RGozhansky   Posted on: 09/29/07 You are currently: a Guest | Members login | Terms of Use

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