I first took up a camera around the age of nine, but it wasn't until I discovered Yahoo! Inc. (NASDAQ: YHOO)'s Flickr photo-sharing site that my "career" in photography really took off. While I'm certainly not hitting the runways of Milan with my Pentax PZ-1P anytime soon, this year I sold several photographs and permitted dozens of others to use my work under the Creative Commons license with which I offer my photos. (My choice is a non-commercial attribution license; as I use many of my photos for work, here on BloggingStocks, I'd hate to see rivals utilizing them as well.)

After extensive conversations with IP attorneys and other authorities in the industry, and given my responsibility of overseeing the use of thousands of photos each year, my grasp of all the legal issues surrounding commercial use of intellectual property is deep. One of the thorniest issues is that of what's called "model release," in other words, if someone's IN your photo, can you still use it?
My bosses take a hard line to stay on the safe end of potential lawsuits: if someone recognizable is in a photo, it can't be used without an express or implied release (I argue that my closest friends are well aware that I'll be reusing the photographs I take of them, for instance, and thus imply release by virtue of friendship -- though I'm very careful not to betray this trust by associating them with something untoward). This is a gray area, and a friend who is writing a book found her editors were much more liberal with Creative Commons-licensed photos, using recognizable people at will. In that instance, the images aren't expressly endorsing anything; they're being used editorially, and that use is generally allowed.

Using a Creative Commons license -- essentially, permission to re-use your photo under certain restrictions, and nearly always requiring attribution -- does, necessarily, involve a great deal of trust. Not just my friends trusting me not to use a photo of their son on a post I write about spoiled children; but trust that commercial and non-commercial users will honor the license so the rights owner won't have to go tracking it down. And so (as my friends at Sweet Juniper discovered a few weeks ago) your little girl won't appear as the poster child for lead poisoning. Or so (as my friend Brenda discovered this weekend) your lovingly-created graphic design won't appear plastered all over someone else's mugs. And so (as several photographers and innocent church-going bystanders discovered earlier this year) Virgin Mobile won't illegally re-use your photos in their billboard campaign.

This last one should be a very interesting and multi-faceted case that will stretch the trust of all involved. Everyone and his brother has been named as a party in the lawsuit brought by the family of Allison Chang (whose image was used by Virgin Mobile after her church youth counselor snapped it and posted it on Flickr), including Creative Commons -- which they claim did not clearly describe its licenses (though most observers agree CC does explain its licenses and, anyway, that's really not germane to this suit).

By putting a photo on Flickr, a photographer gets some great exposure and instant assertion of rights. When I sold a photo of the Beacon Theatre in New York to its marketing company, it was because the web site designer found me on Flickr. On the other hand, though, it's super easy to steal photos from Flickr, even if you've prevented the right-click-download; screen captures are child's play. There is always a certain level of trust involved, even when you've protected yourself up one side and down another with technology and legalese. I trust in the general goodwill of commercial enterprises, and in their lawyers' concern for lawsuits, and finally in karma.

As for the Virgin Mobile suit, in my opinion Creative Commons licenses aren't really the issue here -- the issue is illegal use of a person's image to sell goods that person never wished to endorse. You can't use an image of Britney Spears with a bubble over her head saying "this product's my FAVE!" unless Ms. Spears agrees -- and you can't use an image of a teenager to advertise your mobile service unless you've gotten her say-so. That's the only entirely black-and-white issue in a world of a million colors, and Virgin Mobile has proved itself thoroughly unworthy of trust.