Rethinking Creative Commons

Last September, I changed the licensing of my Flickr stream to release all content under the Creative Commons Attribution-NonCommercial-NoDerivatives license. It seemed like the right thing to do to let non-commercial entities enjoy my work as long as they provided me with credit.

Unfortunately the spirit of my licensing intentions doesn’t always jive with the ambiguity of the Creative Commons licenses. What exactly is commercial use? Selling a T-shirt or print of the photo is obviously commercial… but what about a blog that uses the photo and also runs advertisements? What exactly is attribution? Crediting the photographer by real name? Online username? No explicit credit but linking the photo to a Flickr page? I know in my mind what my answers would be to these questions, but the license doesn’t answer the questions.

Enforcing a Creative Commons license often leads to the role of being an educator, and then quibbling over details. Last week, I encountered three different situations where someone was using a photo of mine (released under Creative Commons) in what I understood to be a violation of the license agreement. I posted an update on Twitter after encountering the third one, which led to a couple people making pleas that I should simply work with the offenders to educate them about what the license really means.

Writing an email that explains the license along with the specific issues for a violation probably takes 20-30 minutes. Responses and followup can eat up more time. Doing three of those in a week is simply time that I don’t have.

I’m no longer releasing my personal work under Creative Commons*. I’ll continue to grant no-fee usage rights in some cases, but they’ll be on an explicit and as-requested basis. I support the spirit of the Creative Commons license but unfortunately the details are vague. I hope that in the future there will be a more explicit license that can easily be applied to my work on places such as Flickr that will allow more more fine-grained control and less confusion.

* Of course, if one of my clients requests Creative Commons licensing for their photos, that can be included as part of the contract.

Comments

  1. My understanding is that the CC license is intentionally vague so that the photographer has more leeway in setting requirements. Scott Beale comes to mind as someone who has made thousands of photos available as CC, but who expects credit (and makes that well known):
    http://www.flickr.com/photos/laughingsquid/

    The commercial issue is touchy, but I’d argue that providing a way to “do it right” is better for the photographer than closing the gates completely to CC.

  2. The level of rights a photographer wants to grant is completely their choice. I don’t think there’s any judgment to be made of any creative based on the level rights they want to grant for use of their work.

    Outside of CC licensing there is the fair use portion of copyright law, which provides for the use of copyrighted works without the permission of the copyright holder. There are 4 criteria that are applied on a case-by-case basis. Commercial use is not one of the four criteria for determining fair use. Here’s alink to the Copyright Office page on fair use, .

    One use that has been consistently ruled fair use over the years is news reporting. Using a copyrighted work, without the permission, to aid in reporting news is considered fair use. In fact, various media have used copyrighted work under fair use for years.

    I don’t think that any blog or website that uses a copyrighted work, whether or not the work is under CC, necessarily violates copyright law simply because it also has advertising. If that were the case then all news organizations would be in violation of copyright.

    It’s more a matter of how the site uses that copyrighted work. Using a photo in a post that can be considered news reporting would fall under fair use, while using it in an ad or other promotion would clearly violate copyright law. Here’s another interesting link on fair use.

    I believe that the CC Attribution-NonCommercial-NoDerivatives license helps defines the free use of copyrighted works but, in light of fair use, its relatively clear what is and isn’t commercial use.

    A fact of life is that as long as copyrighted work is published on a site like flickr, there is a reasonable chance that the work will be used, without permission, for certain uses.

    Personally, if at all possible:
    -I will seek permission first to use works that are copyrighted. If there is any doubt I won’t use the work.

    -If there is a CC license, I will use the work without asking permission but will always give attribution to the copyright holder in the form that exists on the source, whether it is the username on a site or the actual name, and a link if possible.

    -If possible, I will notify the copyright holder of my use.

    Above all, showing courtesy and respect to the copyright holder will go a long way to smoothing over any issues that may arise. That’s how I handle this issue.

  3. Adam D, I think in general Creative Commons licensing is not intended to be vague at all — remember, there is very specific legal language behind the nice pretty icons and 1-sentence summaries.

    However, the “no commercial use” provision is widely known to be tough to pin down.

    The more I consider this issue, the more I believe that the “non-commercial” provision should simply be left out of the CC menu. CC offers a great service when their licenses offer a clear delineation of the legal status of a contract. When it gets into hazier notions like “what constitutes commercial use”, I think it might become a DISservice to present the appearance of clarity where, in fact, there is none.

    Aaron, I think you provide a good reason for opting out of CC licensing. I’m a huge advocate of building the commons, but that doesn’t mean it’s for everyone, in every situation. However, one other option might be to offer lower-resolution versions of your images under CC-BY-SA licenses. That will give you added exposure without putting your full-res work at risk; also it would make it possible to use lower-res versions of your work in places like Wikipedia. A win for everybody, no? The only drawback I see is that Flickr doesn’t offer an easy way to license different resolution versions of your files.

  4. Pete,
    Question for you. Does the CC license apply only to the revision of an image that is uploaded to flickr, since that is where the license is applied? That is the way I have treated it. I never upload high-res to flickr and would not grant to the CC license on a high-res revision. That’s why I’m comfortable with the CC license for my images there. But your comment has made me question that reasoning.

  5. Ken,

    I believe your approach is fine. But I guess the question is whether the license refers to “this photograph” or “this representation of this photograph.” I believe it’s the latter, and it’s fairly routine on Wikipedia for us to advise photographers who want to preserve some rights to do this.

    However, I am not a lawyer, I’ve never played one on TV. You should probably ask a lawyer, if you really need a good answer to that. Or at least read the CC license carefully, with an eye toward that question.

    The legal code says the following:

    “Work” means the copyrightable work of authorship offered under the terms of this License.

    Oh, interesting enough — the front page of creativecommons.org currently has a survey asking what “commercial work” means to you.

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