*This is an editorial piece. I am not a lawyer. Research this material before making decisions based upon it. *
Creative Commons is a great concept; often misunderstood, employed incorrectly and as a result gives those employing it a false sense of security.
A few days ago I posted a video titled How Creativity Is Being Strangled By The Law where Lawrence Lessig, founder of Creative Commons, spoke about the digital divide between current copyright law and use of copyrighted material on the Internet. I mentioned that I thought about the discussed concepts in the video twice, once as an average Internet user and once as a photographer.
As an average Internet user I enjoy seeing clips of my favorite shows and the transformed work of music and movies on YouTube and similar web sites. Like most I find it fun, entertaining and a great way to take a break from my hectic schedule. To Lawrence Lessig’s point this type of user generated content is indeed a pillar to how current and future generations will communicate.
As a photographer I view this discussion on user generated content & copyright protection in different terms. I view this discussion in the terms of securing the means to make or try to make a living from my photographic efforts. Copyright law affords photographers the means to reserve rights to their work and obtain damages for improper use of that work. It is this protection that allows photographers to pursue a variety of business models or marketing strategies that center around the Internet with out fear that their work will be used improperly. As I’ve discussed in the past maximizing the protection afforded to you through the law requires that photographers formally file their copyrights with the Library of Congress (see Copyrights: Protecting My Photography).
Copyright law has been fairly black or white until this point.
-> You either are the copyright holder or you aren’t.
-> You’ve either formalized your copyrights with the Library of Congress or you haven’t.
-> You either have granted permission for others to use your copyrighted material or you haven’t.
Unfortunately copyright law has not been revised to account for new types of delivery mechanisms and technologies such as the Internet. As a result, if you watch the news, lots of test cases have been bouncing around the U.S. court system that will inevitably redefine the law incrementally. U.S. copyright law has not kept up with the times primarily due to corporate lobbying. Lawrence Lessig’s solution was the creation of Creative Commons, giving copyright holders the ability to define the shades of gray missing from current legislation. The goal of Creative Commons to quote their web site is…
Creative Commons provides free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry. You can use CC to change your copyright terms from “All Rights Reserved” to “Some Rights Reserved.”
Creative Commons defines the following (6) licenses with in the bounds of existing copyright law:
1. Attribution (by)
2. Attribution Share Alike (by-sa)
3. Attribution No Derivatives (by-nd)
4. Attribution Non-commercial (by-nc)
5. Attribution Non-commercial Share Alike (by-nc-sa)
6. Attribution Non-commercial No Derivatives (by-nc-nd)
See the definitions of each on the About License page on CreativeCommons.org
Before I go further I want to emphasize that Creative Commons licenses are not for everyone and to that sentiment they are not for me. I have not, nor will I ever employ one for my photography. More on why shortly . If you research Creative Commons licenses I highly recommend reading Cory Doctorow: Creative Commons. Cory Doctorow gives a great overview to Creative Commons.
So What’s Wrong With Creative Commons?
The Creative Commons approach has problems on two fronts.
First…
Copyright law is not for the light hearted and as noble as the Creative Commons movement is to make copyright law more digestible, those employing it seldom read the fine print. The slick iconography assigned to each license type facilitates copyright holders to ineptly glance over details of the licenses. Unlike similarly developed clothing care iconography, now employed on mass produced clothing tags, an errant interpretation can result in a catastrophic outcome of an infinitely greater scale.
In concept Creative Commons licenses are great. They address the new paradigm of user generated content. Unfortunately most copyright holders whether amateurs or professionals do not understand nor are able to predict the infinite types of use that may come of their work as a result of their Creative Commons license choice. In principle the open ended licenses are great, but in practice they actually work to the advantage of others. This is most notably the case when it comes to commercial use. A remix on YouTube is quite different than a photograph being incorporated into a marketing campaign.
Such was the case with a photograph on Flickr by Justin Wong that was licensed as Creative Commons Attribution and used in the Virgin Mobile Dump Your Pen Friend ad campaign. What does Creative Commons Attribution mean?
“This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms”
– Creative Commons
Although Justin Wong released his photo with this license his friend who was photographed did not knowingly consent to the use of her likeliness for such purposes. As a result she filed suit against Virgin Mobile.
Virgin Mobile sued over Flickr image used in ad – MSNBC
Not only is this case a perfect example of copyright holders not understanding Creative Commons licenses it’s a perfect example of companies not understanding them and other basic principles such as model releases. This lack of understanding runs both ways and amounts to a certain degree of licensing and rights chaos.
Second…
As noted in Cory Doctorow’s article, Creative Commons licenses are “global and irrevocable. Once you release a work under a CC license, you can’t take it back, ever, and they apply equally to everyone.”
Just this past week a photo of Yahoo CEO Jerry Yang by Mitch Aidelbaum made its way to the front page of CNET’s web page. Although CNET had licensed and used the image previously with Mitch’s permission the second use of the image caught Mitch and his friends by surprise as it wasn’t attributed. The original license of the image was “Attribution 2.0 Generic” according to Mitch. Although CNET seems to be in the wrong regarding the attribution, like Justin Wong both photographers attempted to change the licensing after they realized that their photos were being used in ways they didn’t agree. According to the underlying fundamentals of Creative Commons licensing once you release a photo with a designated license it is forever out there as such, no matter what changes you attempt to make later. In this instance CNET will likely improve its documentation of image licenses before use. so they better conform to them and so that they can prove with out a doubt what they are or are not allowed to do with them.
I am an idealist at heart, but to be pragmatic the vision of Creative Commons seems to work best for non-commercial use. As well intentioned as Creative Commons and/or Lawrence Lessig’s efforts are when it comes to commercial use the vast majority of copyright holders are not educated enough in this area of law nor do they understand the extent to which their work can be used if not exploited. Unknowingly the efforts of Creative Commons has opened the doors for companies and marketers to use imagery with little restraint and for little to no cost. In no uncertain terms some of these licenses are essentially blank checks. Where photographers with traditional “All Rights Reserved” license terms once had the ability to tailor usage constraints up front, photographers with Creative Commons licenses containing pro-commercial clauses give companies the go ahead to use images in ways the photographer may have never intended or could envision.
In this regard the very thing Creative Commons licenses work to address also works counter to. A fan casually making an edited video of TV clips to the latest #1 song for fun and putting it on YouTube is one thing, but irrevocably opening the door for companies to use a copyright holders work for profit is another. Ironic that what Lawrence Lessig speaks of in his “How Creativity Is Being Strangled By The Law” video equally helps and hurts the copyright holder. To be fair at the end of the day its the responsibility of the copyright holder to properly review and select the correct license. Unfortunately most artists seldom know where they’ll be in 10 years. 10 years ago I was a hobbyist and today I’m making the effort to establish myself as a professional. 10 years ago I had no notion of copyright law like the majority of people taking photos today. If I had carelessly chosen the wrong Creative Commons license (assuming CC existed) then I’d have removed or detrimentally impacted my ability to generate income off of 50-60% of my photographic work.
Copyright holders, especially photographers no matter what level of expertise or status should be as conservative as possible when it comes to copyright licenses. Nothing will ever be safer than “All Rights Reserved” and for that reason I find no value in Creative Commons licenses. With out a doubt U.S. Copyright law needs to be reviewed and updated, but photographers should not be under any illusion that Creative Commons licenses will make their lives better or easier. It will only make the lives of those who want to use your work easier. Photographers need to work hard to think long term, track usage of ones work and blatantly associate their name with it. Why?
As Creative Commons licensing gains momentum our laws are changing, stacking the deck against copyright holders. U.S. legislation is being proposed and will again go before Congress dealing with “orphan works”. Copyrighted material not easily traced to the copyright owner could more easily be converted to pubic domain work. If this legislation were to pass in conjunction with growing Creative Commons licensing use photographers could be in an incredibly difficult position. Once an image is out and used under a CC license it may become difficult or impossible for someone to track down the photographer if that image is repurposed in an uncontrolled fashion. Dependng how the orphan works law is written the end result of this example could mean the image would eventually be used for purposes outside of the specified CC license if the photographer can’t be identified or found. Copyright law is indeed in flux and for these reasons now more than ever photographers need to be as conservative as ever in regard to work they’d like to preserve the rights to.
[tags]creative commons, creativecommons, copyright, photography, photograph, attribution, Lawrence Lessig, Larry Lessig, Flickr, Jerry Yang, CNET, Virgin Mobile, license, law, legal[/tags]
Good morning, Jim:
I’m traveling today and I just got up and saw your interesting piece on Creative Commons. I’ve been somewhat familiar with this since Lessig introduced it – though not through my photography but instead through some previous web work and my work as a college faculty member.
Creative Commons does provide some interesting and useful “gray areas” (as you put it) for generally permitting certain types of uses while retaining at least some control over the nature of those uses. For example, in the academic world, some have decided that this would be a fine way to share certain online teaching/learning resources while ensuring that they would receive credit and controlling their use by others in a for-profit context.
However, I’m generally with you regarding photography that is or aspires to be professional. I can imagine a few circumstances where one might want to use a Creative Commons license on material… but only a very few.
Dan
Dan thanks for the comment. Academically I can see CC being very useful particularly for course material. Photographers should always be very selective with their licensing choices whether CC or not. With the prospect of the photographer unfriendly Orphans Work legislation around the corner I think CC becomes even less attractive. Thanks for taking the time to read and comment on my article.
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I’m not going to pretend like I truly understand the benefit to photographers for using CC. In fact, the impression I get from reading this post is that CC is for lazy people who don’t really care about taking responsibility over their intellectual property. I mean, if you want to let educators, remixers, or other artists use your work for non-profitable purposes then how hard would it be to just say all rights reserved and have them contact you if they want to use it? They just email or call you, you say yes or no. Very simple.
Flickr must not have a firm understanding of copyright law if they are still offering CC as an option especially after those high-profile lawsuits that have taken place. If Flickr doesn’t offer CC, then they wouldn’t be involved with any controversy, which in my mind would be a smarter business decision for them. But then again, maybe they are of the philosophy that any PR is good PR.
Though I sell my photos professionally and strive to get fair market value for my images, I have allowed for certain educational uses of my images for no cost, though only after I was contacted about the intended use.
And finally, related my own personal experience with Flickr albeit limited, I had an account for over a year before I posted any images because I found having to choose between six versions of Creative Commons versus All Rights Reserved, etc… to be too confusing to understand. To me, trying to read through the literature on the account sign up was just too confusing for me to make me want to risk my images over. All I wanted was a choice to say my images are not available for duplication, copying, etc… without written permission. Unfortunately the material on Flickr’s site never stated that option as clearly as I had hoped for so I refrained from posting for quite a while. If I had posted images right away while having that confusion, I likely could have allowed my images to be distributed for free against my wishes without realizing my mistake.
Let me clarify about the Flickr experience: When I signed up for the account, I had never heard of Creative Commons before hence the confusion.
I’m going to have to sit on this one for a while and think it over. I’m generally for the Creative Commons licensing because it gives additional options to the photographer. Though you make a valid point that it’s not well understood by many photographers. I’ve also found that it’s not well understood by many publishers, especially bloggers.
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Good stuff. Although I can’t say I am with you fully on your ideas about Creative Commons, wow.
Opinions aside, you really spell out the other side, minus the pretty web 2.0 graphics, shiny badge and schwag. Though in theory awesome, and viable, I feel that too many of us see the shininess, and cool logos of CC and feel it’s ok to jump on board without reading the fine print.
Great eye-opening post.
Creative Commons is a great concept; often misunderstood, employed incorrectly and as a result gives those employing it a false sense of security.
Discover why you should reevaluate your use of Creative Commons….
So, the fact that some people don’t understand the CC licenses is CC’s fault?
>> Richard Wong: I mean, if you want to let educators, remixers, or other artists use your work for non-profitable purposes then how hard would it be to just say all rights reserved and have them contact you if they want to use it? They just email or call you, you say yes or no. Very simple.
[Richard Wong: I mean, if you want to let educators, remixers, or other artists use your work for non-profitable purposes then how hard would it be to just say all rights reserved and have them contact you if they want to use it? They just email or call you, you say yes or no. Very simple.]
But this is not always practical or doable. For example, I am editor of an online news portal, and the pace here is very quick. I get new articles, and my task is to find appropriate photos to illustrate them, and then publish asap. When I don’t find a rigth photo in agency photo-archive, I head right away to flickr creativecommons section. I just don’t have time to email or call the owner, wait for the answers, etc. I really don’t. (Regretfully, neither do I have a budget to pay them…)
So from my perspective, CC is a good thing, but it would be great to fix the grey areas, like whether editorial use is commercial or not.
I hear a lot of critique about CC and most of it comes from pro photogs. But not all photographers are pros, some do it as a hobby and it’s their right to release their photos as CC. Nobody is forced you to use CC, so what the heck?
It is like someone would frown on hobby programmers that they are releasing their work as open source and eating the lunch of profesionals.
“I hear a lot of critique about CC and most of it comes from pro photogs. But not all photographers are pros, some do it as a hobby and it’s their right to release their photos as CC. Nobody is forced you to use CC, so what the heck?”
Yes, this is true. The reason why pros are usually more vocal about it is because they are more likely to know the potential legal ramifications from not paying attention to how their work is used. As for marking your photos CC just for fun, the question I have is: Why potentially subject yourself to controversy and legal problems when there is nothing for you as the photographer to gain by it? That in my opinion is the underlying message of what this blog post is about.
You can gain at least some exposure. For example, some prominent blogs like zenhabits.net use CC images from flickr as illustrations to their posts, and the credit link leads directly to photographer portfolio – so they may become more known through their work.
Another issue is, that when the photo is fully copyrighted, I as an online publisher would not ask the owner if I can publish it for free – it just doesn’t sound right, does it? Moreover, I may even get accused of trying to use other people work to benefit myself. So I am interested only on those photos, whose author clearly states that he wants nothing more than credit for it – and CC license provides just that.
But you are right about the potential legal ramifications – and my opinion is that the solution is in further polishing the CC license and solve the “grey” areas.
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@Richard Wong thanks for the great thought to the points made in my post.
@quirkyalone CC is definitely valuable for the fast turn around needed in todays publishing world especially in the blogosphere. None-the-less just because I’m not big on CC licenses it doesn’t mean that the same speed can’t be achieved by a simple email. A perfect example of this happened yesterday with a photograph of mine of the Oil Spill here in SF. A quick exchange of email allowed me to authorize the use of an image for an email newsletter. Was the hour it took of back and forth as fast as going and referencing an image on Flickr? No, but lets be real. If a photo has great enough value to use then a publisher will take the steps necessary to obtain permission to use it.
Having lived in the marketing world long enough I know that publishing is about speed and often marketers will push deadlines to the very last minute. Frankly that should be the publishers issue and not the photographer’s. For photographers to be pressured to change their license models to meet this demand is unfortunate. Being a realist it will happen as photographers need to compete and meet the needs of their clients. None-the-less my main point holds. Publishers will be flexible if a photo truly has value to the publisher.
—
Another vibe I’m getting as I read responses to this post on other blogs is that CC licenses are fine as you can always revert to full Copyright protection. Unfortunately although true it is not telling the complete story. The written word is very different than the real world application of copyright enforcement. Few lawyers will work for free and only a formally filed copyright with the Library of Congress will allow a photographer to seek $150,000 per violation. Lawyers are much more apt to take cases where they can be paid for their services. So why is this so important?
CC license relinquish control of ones work almost completely. If your photo is used in ways you object to even if you’re being attributed you’re putting yourself and your work at risk. Changing licensing from CC to something more restrictive at a later time becomes a logistical & enforcement nightmare. If you were to file a copyright claim, even if you filed with the Library of Congress, a CC license in the past history of the image would likely undermine ones ability to prove the violation and/or be financially reimbursed. In addition photography like other businesses is centered around supply and demand. If you open use of an image for unlimited use and purpose, you undermine your ability to regulate the value of that image. This most certainly impacts a photographer in the short term and long term.
One thing that I didn’t speak to that does alarm me for others is the release of family photos on Flickr for CC licensing. I would not want to relinquish the use of my family photos for someone to use in ways that I have no right to restrict. Do I want someone using a picture of my grandparents or child in a Fark photoshop spoof? No. Does it add value to the online community? Maybe but it surely would be detrimental to the character of my family members. CC license use of photos is not all about editorial news its about popular culture as well. The Internet is not a new paradigm when it comes to protecting oneself either as an individual or as a photographer. That being said I do realize that my examples most certainly are the exception and CC licensing in general is used appropriately. None-the-less we’d be fools if we didn’t open our eyes to the areas CC licensing can fail us.
I anticipate that the licenses will only be strengthened and adopted more widely. For now we likely are seeing the growing pains of CC’s. I’m looking forward to seeing how the CC licenses adapt and evolve as real world problems arise.
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I wrote an article earlier this year on how gray areas associated with the CC license are potentially detrimental to protecting your work:
http://www.joereifer.com/words/?p=121
Cheers,
Joe
Thanks Joe I’ll take a look.
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Does anyone think that the girl in the Justin Wong/Virgin case had a right to sue Justin Wong?
I know they’re friends and from the same church group, but putting that aside, Justin gave away rights he didn’t own, right? ie the model release from the girl. So is Justin liable to the girl for his negligent action of choosing the “wrong” CC licence? Shouldn’t he own up too?
Trouble I find with CC is the way it’s been “marketed” to the masses. They make it cool & hip to be a CC-user, without explaining the ramifications of the licenses.
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“Think about where you’ll be in 10 years”? Hell, most of the people pushing CC barely know where they’ll be in 10 _minutes_. 10 years, to them, is on the same timescale as the heat-death of the universe.
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Quite simply anything that is digitised is wide open to abuse.Irrespective of whether or not it is photographs/software or artwork.Anyone proficient in graphic arts and graphic arts software, uses either complete images or sections of images for their own use.Respect of copyright or CC terms and usages is not an issue for any graphic artist.The dismantling and manipulation of any image when done reasonably well,will remove any and and all rights.(Not in the legal sense,but through obfuscation of the source material).No image placed on the internet with any form of “protection” is protected.Any one who values their work/efforts or time in producing any form of artwork should think twice about converting it to a readily accessible and down loadable format.Unfortunately not only do most photographers.artists etc place their work unprotected on the web,they also fail to understand the need to understand the technology involved.