Here’s the ad in question - as an added bonus, the first comment on that page is from the girl in question, “hey that’s me!”
Arguments that the ad is child porn are, to be blunt, fucking ridiculous.
I see from the article (and others I’ve read) that the girl’s family and the photographer are suing Virgin Mobile USA LLC, its Australian counterpart, and Creative Commons Corp. Virgin USA are seeking to be removed from the case which, seeing as they have sod all to do with it, should be cut and dried. Suing Creative Commons? I’ve read that’s because they didn’t adequately inform the photographer what the licensing agreements meant. Okay. God knows how that’s gonna turn out.
The main baddie of the piece (the one that is actually responsible) is Virgin Mobile Australia. If the ad appeared on their website, then it could be claimed that it had appeared commercially in the U.S. If it didn’t, and was just used in print in Australia, then the family is going to have a really hard time applying Texas law to a foreign company.
That’s what I came in to say. It’s very common here to refer to calls between phones on the same cellphone network as “Optus to Optus”, “Vodafone to Vodafone”, “Telstra to Telstra”, and, in this case, “Virgin to Virgin” (You usually get a cheaper rate if you’re calling people on the same network as you- often free minutes or 20c untimed calls or what have you).
Even if a US judge finds in favour of the girl, an Australian court will not enforce a foreign judgement against Virgin (or anyone else in Australia, for that matter) anyway, so I don’t know why she’s wasting her time with lawsuits, to be honest.
Your assertions as to laws on pornography are without foundation in law. I suggest you study up before making such assertions. You might try finding citations to back them up.
By that logic, if Felix Unger is hired by Megalomart to do a photoshoot for their teen fashion catalog, and filthy Moe Syzlak finds said catalog arousing and masturbates to it, Felix is criminally liable for child porn.
Their ad people seem to have simply searched Flickr for “sharable” images. However, you still need a release from the model to use their likeness in an advertisement. The photographer alone does not have that right, whether they are giving away the photo, or selling it.
Extraordinarily sloppy, I don’t think an agency would ever forget to have all releases together for a paid photo shoot, but they either forgot, or were hoping nobody would notice, for these free photos.
The scribbler who wrote this article left out critical data – does the version of the Creative Commons License selected by the photographer authorize commercial use, or not? If it’s a noncommercial license, Virgin’s use is clearly infringing. If not, the photographer may have a case against Flickr for failing to explain the point during license selection (but IMO it’s far more likely to be a case of PEBKAC).
That’s not clear cut. It might still be the case that the company would be able to be successfully sued in the United States, or that someone from the US might be able to sue in Australia. As to the former, it gets quite complicated (Gfactor or Bricker, either of you want to do a Staff Report on things like Choice of Law and international comity?). As to the latter, I wouldn’t even attempt to answer, not being versed in Australian law.
Any chance that Virgin is looking for just this kind of publicity? Per Kal’s link, it looks like Virgin specifically used photos that would be, at minimum, difficult to sue over (non-Australian photographed outside Australia). Add to that the fact that it’s hard to believe any large company that advertises wouldn’t have a department full of lawyers and ad people that know the laws.
The more I read, the more is seems that Virgin is looking for, and getting, lots of publicity from this. They will probably end up settling out of court for way less then they would have had to pay for the amount of visibility they will get.
How well can Virgin in Australia separate itself from Virgin Mobile in the US and thus avoid getting sued because the players are in different countries? They seem to use a pretty consistent set of logos etc. They seem to me to be actively promoting the idea that there is one big Virgin company.
She’s hot. I would definitely let her be my pen friend. Pen 15, that is. See, there you go - it’s sexual. The perpetrators should be charged with child molestation, and jailed.
Perhaps my understanding of the law is entirely wrong.
My understanding of decency may well be flawed as well. But it seems to me that snide references to an unknowing minor about her sexual being are prurient. If the corporate policy is entirely at ease with the use of this young woman’s sexual being for their own profit without so much as a “hey, do you mind if we do this” to her parents, or even to her, it seems reprehensible to me.
There are lots of alternatives to the choices made. Hire an actress over 18 and use makeup and such to make her look younger. It’s still sleazy, mind you, but it is at least not exploitation of a minor.
Except you’re misinterpreting the advertisement. The “Virgin to Virgin” slogan is nothing to do with the image, and is entirely to do with the company’s phone services (as all of us in Australia know, as it’s been a phrase used as part of their deals for a long time). The only tag that is deliberately associated with the image, and the person portrayed, is the “Dump Your Pen Friend” line, which is a little rude and enough for the girl to be upset about, but has nothing to do with anybody’s “sexual being”.
Just disassociate your literal interpretation of the word “Virgin”. It’s the company name, nothing more. Blame Richard Branson for using such a prurient name in the first place, but don’t blame the subsequent use of it in its own advertising.
I don’t think it’s a matter of decency or not, a model release should have been obtained for the girl, with her parents consent as she was a minor when it was taken and used in the advertisement. The Creative Commons type the original photographer used allowed for commercial use without his consent, just the attribution.
I think the ad in general is stupid, others in the series are clear cut. This is muddled, is she the pen friend? is she getting rid of pen friends?? Someone suggested on the Flickr discussion of this the girl should join a modelling agency.
Doesn’t the photographer bear some responsibility in all this? He signed up to a licence agreement that allowed commercial usage without obtaining the model release.
Without that release, he should have only signed up to an agreement that allowed editorial and non-commercial usage.
I think Kal’s post pretty much summed it up. They had a duty to get the model’s consent, they didn’t so they’re in the wrong- the only reason they’re getting away with it is because the law is unsure whether they have jurisdiction.
The word virgin is not simply a company name, and no more. The name was not bequeathed upon this company by some uncontrolled prior force. It was chosen. If it was chosen without any referent to the state of sexual inexperience, then those doing the choosing are blithering idiots.
You may choose to blither along with them, I, and millions of others will not. Language does not mean only what you wish it to mean. Virgin means something sexual.
