There has been a lot of discussion in the blogosphere this week about the use of a Flickr image posted under a Creative Commons license in a Virgin Australia advertisement. (The parents of the child in the photo, who had not given permission for its use, are suing Virgin, the photographer, and Creative Commons.)
The salient point in this case is that the photographer and Virgin did not have a model release. Anyone who has worked in commercial publishing for more than a week should know that you must have a model release for images with people in them.
There are certainly other issues that this case begs, related to non-commercial use, the millions of Flickr photos with people in them, etc. (see Larry Lessig’s thoughts on this, though he can’t comment on the legal case for obvious reasons), but the main point of this case has nothing to do with Creative Commons or the digital world. If the photographer had taken this photo with a non-digital camera (remember film?), copyrighted it, and sold it to Virgin, the same problem of the lack of a model release would exist.
[Image credit: public domain courtesy of Kimmo Palosaari, from OpenPhoto.net…. interesting sidenote that you won’t find open-licensed photos with people in them on this site]