Right of Publicity & Flickr

An image of Alison Chang, a Texan teenager, published on Flickr, made it all the way to an Australian Virgin Mobile advertising campaign. The teenager is now suing Virgin in Federal Court.

This case is an IP case, as Mr. Wong, Ms. Chang's church counselor who took the picture, and uploaded it on Flickr, under a Creative Commons license. See here for some Lawrence Lessing comments.

What interests me the most in this case are the privacy issues, in particularly Ms. Chang's right of publicity. Unfortunately, Ms. Chang does not have any right of publicity under Texas law. Texas law, Tex. Property Code Ann. § 26.001 et seq., does not recognize a right of publicity for living individuals, even if, curiously, it prohibits the use of images of deceased individuals, up to 50 years after their death... There is no federal right of publicity. Unlike France, the USA do not have a general droit à l'image, right to your own image. Did the fact that Ms. Chang is living in Texas weigh on Virgin's decision to use her picture for advertising purposes?