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The Chang case involved a clearly commercial use of her likeness.
(For information on copyright licensing, see Copyright Licenses and Transfers.) Virgin Mobile used the photograph in an advertising campaign to promote its free text messaging and other mobile services without getting permission from Chang or her parents to use her name or likeness.
Chang's parents sued Virgin Mobile for misappropriation of her likeness, and the facts would also have supported a claim for violation of her right of publicity.
They brought other claims against Creative Commons, which they dismissed shortly after filing the lawsuit.
The case, which was subsequently dismissed for lack of personal jurisdiction over Virgin Mobile, is interesting because it highlights the fact that somebody seeking to use a photograph needs to worry not just about copyright law, but also misappropriation and rights of publicity.
Keep in mind that misappropriation and right of publicity are state-law legal claims, so there is some variation of the law in different states. "Likeness" refers to a visual image of the plaintiff, whether in a photograph, drawing, caricature, or other visual presentation. This ordinarily means using the plaintiff's name or likeness in advertising or promoting your goods or services, or placing the plaintiff's name or likeness on or in products or services you sell to the public. In another example, a court issued an injunction prohibiting a website operator from violating Paris Hilton's right of publicity by selling subscriptions to a website providing access to photographs of her and other private materials belonging to her. You also need to get copyright permission from the person who took the photograph (or whoever owns the copyright). There are two important limitations on the exception for news and commentary: First, if the plaintiff can show that your use of his or her name or likeness bears no reasonable relationship to the content of the news or commentary presented, then you may be liable for creating an "advertisement in disguise." This usually comes up with photographs used to illustrate otherwise newsworthy stories. Other courts have rejected this view, holding that there is no reasonable relationship between the photograph and the subject matter of the article if the person in the photograph is not mentioned in the text. See Overview of Publishing Information That Harms Reputation for details on these two legal claims. The Supreme Court held that the First Amendment did not prevent liability for violation of the right of publicity, even though the broadcast was newsworthy. If you use someone's name or likeness in connection with news reporting, commentary, or a creative work protected by the First Amendment, then you can also use it in connection with truthful advertising of your own work. " The advertisement invited readers to purchase Internet access from the ISP and to join the online debate about Stern.