Photo negatives

Net results: In the age of digital images, fast uploads and downloads, and a plethora of public profile and photo storage websites, just how much control does an individual have over their own image? writes Karlin Lillington

Potentially, not very much, going by a lawsuit filed this week in the US by an American teenager who found that her image was plastered all over Australia as part of a saucy Virgin Mobile advertising campaign.

The picture is sweet enough: 16-year-old Alison Chang, who was at a church fundraiser, grins and makes a peace sign. The image was posted by a youth counsellor to the photo sharing website Flickr.com so that other church members could enjoy memories of the event.

Next thing, someone plotting a Virgin advertising campaign got the bright idea of getting a number of pictures off Flickr.com and matching them to slogans intended to be sharp, flip and amusing. Chang ended up with "Dump your pen friend" printed in big letters alongside her image and "Text free virgin to virgin" in smaller text at the base of the advertisement.

Her family claim the use of her image is derogatory, embarrassing and insulting to her. They say Virgin should have obtained her permission before running the advertisement.

All this might seem to make sense. And any of us might feel outraged to find that we have been used in a major national advertising campaign without our knowledge, not least if the way our image has been used is unflattering. And especially if we have not received any financial compensation, much less been asked if we wished to be included in the campaign.

The problem is that the internet turns us all into publishers when we stick our personal content up in public places. An album on Flickr is not the equivalent of a set of prints pasted into a private photo album. It is a publicly accessible location that can be viewed by hundreds of millions of people worldwide. Also, using a service such as Flickr - or Photobucket, Bebo, MySpace or Facebook - means clicking usage agreements that in many cases hand over certain rights to the site owners to use that content in various ways.

Who reads a usage agreement with its complex legalese? The same people who fully read those lengthy Eulas - end-user licence agreements - that come onscreen whenever we install new software: nobody. That means we routinely and unknowingly cede various levels of control.

As it happens, Flickr, unlike many such websites, has an interesting option for users. They can keep the default option for their content, which reserves user rights to the images (meaning a company like Virgin, or anyone else, would need to obtain permission before using an image). Alternatively, they can choose one of several Creative Commons licensing options.

Creative Commons is a non-profit legal organisation that hopes its licences can offer less restrictive sharing of media in the internet world. For the most part, this has been seen as a laudable aim in a world gone mad over controlling copyright, and I'm a big fan of Creative Commons. However, its usership needs to be better informed - it is likely that many choose such options, never imagining the ways in which their images could be used.

Chang's photographer, perhaps unthinkingly, chose a Creative Commons licence that grants full use of any image anywhere as long as the photographer is credited. And the Virgin advertisement does give the URL (web address) for the folder in which the image was posted.

But what about Chang's rights to control the use of her own image? What happens when a third party posts an image of any of us and enables it to be used by others without our say? Obviously, this is not a straightforward case and is going to raise serious questions about such licences, especially as the Changs are now also suing Creative Commons for failing to clearly educate users on how the licence in question could be used.

The suit will also lead to a consideration of how publicly posted imagery can be used, and who has the final say in controlling same.

On the face of it, it would seem that the Changs will have a hard time of it, because it appears that Virgin followed the terms of the Creative Commons licence. Plus, Virgin has lots of lawyers and clout, while Creative Commons is an organisation of lawyers.

On a separate issue, one could argue with reason that Virgin, a huge corporation, should have compensated those whose images were used and those who took the photos, and should have asked permission to use the pictures for such a campaign.

I think Virgin should have done this as the decent thing, given the youth of the internet as a medium, its fuzzy legalities and lack of case law, the naivete of most users about such issues, and the fact that most people obviously assume their stuff is their stuff, even if posted online.

At least there is one immediate benefit: many people will be considerably more aware of and concerned about privacy issues, and more careful about checking how their content can be used on websites.