Copyright: Creative Commons

Update 1/30/07: Mia Garlick, General Counsel for Creative Commons, pointed me to a wiki: Discussion Draft Non Commercial Guidelines that addresses the concerns I’ve talked about in the article below. Forbes usage of Thomas Hawk’s image would clearly be commercial usage according to these Draft Guidelines. Gray areas with licensing make me uncomfortable, and I’m quite pleased that Creative Commons has a document in progress that seeks to clearly define what constitutes commercial usage. – jr

The Creative Commons license is billed as a more collaborative and open way to share your work than a standard copyright. I found the most interesting part of the Creative Commons FAQ to be a short item called Is Creative Commons Against Copyright? which states:

Not at all. Our licenses help you retain your copyright and manage your copyright in a more flexible, open way. In fact, our licenses rely upon copyright for their enforcement. The justification for intellectual property protection (under U.S. law, at least) is the “promot[ion of] the progress of science and the useful arts.” We want to promote science and the useful arts, too, and believe that helping creators or licensors fine-tune the exercise of their rights to suit their preferences helps do just that.

Sounds like a noble idea. But things get messy when you try to apply this paradigm to photography. At the risk of alienating some close friends, I want to boil the issue down into the most significant downside of using the Creative Commons license for photographs:

Applying the Creative Commons license to your photographs may provide a structured way to give away your work to large corporations for nothing more than a photo credit.

Forbes recently used one of Thomas Hawk’s images that was licensed under Creative Commons, and did not give him the required photo credit. After Thomas brought the issue to their attention, they added a credit. When Mr. Hawk was asked why he did not charge Forbes for the image, he responded on his blog:

For those of you who suggested I make Forbes pay money to use the image, reparations, etc. that’s just not my style. I like sharing my photos with the entire world. I make a little money on them from time to time but that is not the primary motivation. For me this issue was more about educating the mainstream media on the appropriate use of creative commons licensed images and the need for approval and credit.

The real crux of the situation is the fact that Thomas may not be able to charge Forbes any money because the Creative Commons license may already allow them to use the image for free, as long as a photo credit is included. Creative Commons limits commercial usage — which means advertising. But magazine and newspaper usage is editorial, not commercial.

Any magazine or newspaper in the world may be able to use your images for free as long as a photo credit is included. By licensing under Creative Commons you may be giving up control of editorial usage of your images, and potentially losing thousands of dollars in revenue.

And because the Creative Commons license is not revocable, any image obtained under the Creative Commons license may be able to be used in the future without payment.

Let’s look at an example of how a standard copyright affords much more control over your images:

A: Forbes wants to use a portrait for an article. I would license the image to Forbes for one time, non-exclusive, North American usage in their print publication and/or website, and in addition to a photo credit, I would put $300-400 in my pocket. Maybe more.

B: A few months later, a small non-profit organization run by volunteers is doing a feature on the portrait subject, and I let them use the image for free.

C: A few weeks later, a magazine I can’t stand wants to use the portrait — and I tell them no way.

But with Creative Commons, the large corporation, small non-profit, and magazine I don’t like may be able to use the image in print and on their website, and all I get is a photo credit.

I’ve struggled to understand why anyone would use a Creative Commons license for photographs when you can just copyright your images, and maintain control over who uses them. If you want to give your images away, that’s your decision to make on a case by case basis. But why give up control?

 

18 thoughts on “Copyright: Creative Commons

  1. I found your comments interesting. I had not thought of the contrast between “commercial” and “editorial.” That would be using a photo in an advertisement (commercial) and using it in a news story (editorial). So you are saying that when the photo is used in any news story anywhere, adding to the content and therefore the value of the publication, this is not a commercial use of the photo.

    What license, Creative Commons or otherwise would you suggest if one wants to ensure that the photo is not used in a for profit venture without permission?

    Do you have any sources for this “commercial” vs. “editorial” distinction? I’d like to read more about it.

    As to your question, “But why give up control?” Mr. Hawk already answered it: “I like sharing my photos with the entire world.” He and many others don’t want to keep complete control, for different reasons. Might they be giving up income by doing so? I suppose but that is their choice, certainly.

  2. Joe, I’m not sure that I agree with you that Forbes Editorial use would not constitute commercial use.

    CC defines commercial use as: NonCommercial=you may not use the work in a manner primarily directed toward commercial advantage or private monetary compensation.

    As a fully commercial editorial venture Forbes is built primarily as a vehicle “directed toward commercial advantage” and thus should not be able to use the photo simply by using a byline.

    On the other hand. If someone started a white supremacy blog as an individual blogger and was not a commercial venture you are right that they could use my work even if I objected via the cc non commercial license.

    You certainly give up control over your work but at the same time you empower others to use it in ways where you never would have received compensation in the first place.

    Do you have any research or citations that would contradict my thoughts on commercial use?

    Best,

    Tom

  3. I ran into a similar issue recently. I think creative commons is a great way to get around the extra paperwork/fee of registering with the U.S. Copyright office. My CC license grants non-commercial license to nonprofit organizations, I believe. I’m happy to provide free use of the image to nonprofits, so long as credit is given, and I am notified of its use.

    I agree with you though. Things can get dicey viz a viz editorial vs. commercial use when applying it to magazines/newspapers. Though they are editorial, I still consider them profit ventures.

  4. Hey Joe, I just got some clarification back from Mia Garlick, General Council over at Creative Commons. See her note below. I think Mia’s correct and that even editorial commercial use would still be considered commercial use.

    “Hey Thomas,

    Well the one court case that has involved the enforcement of CC licenses did find that the use by a commercial newspaper of a CC NC licensed image violated that license condition so I think that you are accurate that there is no distinction between editorial use and commercial use: http://creativecommons.org/weblog/entry/5944

  5. I am a photographer, not a lawyer, so I’m not qualified to interpret the nuances of the CC license. However, my general understanding of the common usage of the terms editorial and commercial photography are as follows:

    commercial — advertising
    editorial — editorial content in magazines, newspaper, and books

    The Stock Photo Pricing Guide neatly divides editorial and commercial (advertising) usage. Commercial usage typically requires a model/property release, whereas editorial usage does not. You’ll see these license distinctions on stock photography websites.

    The key thing to remember here is even though Forbes is a big corporation that is emblematic of capitalist ideals, running a story with images in their magazine is editorial usage. A common misconception that I hoped to help clear up with this post.

    Cheers,

    Joe

  6. Hi Thomas -

    These decisions were in Spain and the Netherlands. I would be very interested in a lawyer’s interpretation of the CC License with regard to U.S. copyright law. I really hope I’m wrong about how the commercial / editorial distinction applies. If an experienced I.P. attorney could help unmuddy these waters that would be extremely helpful.

    Cheers,

    Joe

  7. For reference, here is a link to the full text of the most restrictive CC license for images:
    http://creativecommons.org/licenses/by-nc-nd/2.5/legalcode

    Section 4b.

    You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

  8. Joe,

    Since I’m actually an editor, I’ve had some experience navigating this from the other side, and here’s what I’d say based on the basic understanding of copyright law that prevails in the industry. It comports with the above: Editorial use for a for-profit publication IS commercial use. There’s no distinction to be made. Most professional photo editors know that, and in a traditional copyright environment they therefore know what they can and can’t publish, and under what terms.

    [As an aside, there are meaningful "fair use" distinctions to be made about informational vs. commercial/promotional use within the context of traditional copyright restrictions. Read about that here. But these distinctions depend on the specific context of the ]

    The distinctions you observed in the Stock Photo Pricing Guide would be the kind of things that are subsumed within the basic parameters of a traditional copyright; namely, that all the parties who make the photo available for commercial use (the photog, models, etc.) do so within the framework of some sort of contractual arrangement that gives the parties some measure of control and/or compensation on a case by case basis, anytime the photo is used. To use the photo is to buy into the photographer’s right to impose that contractual framework and whatever it entails.

    And that’s the thing about CC: It’s ultimately about letting go of some of that contractual control. Not all of it, as you know, but the parts that have to do with the kind of granular case-by-case control you write about. CC lays out some basic frameworks for use, so that the ground rules are clear in advance and so the user doesn’t have to get permission each time he/she wants to use a photo licensed under CC. Indeed, that’s precisely why CC was created — to eliminate the contractual gunk and streamline the process of creative reuse.

    (Again, just to clarify the distinction, traditional copyright, by contrast, is about saying, “all rights reserved [except for those that I grant you under the terms of whatever contract I make you sign before I release a photo for use].)

    Now, we can argue about problems of CC enforcement, and if photo editors apply a double-standard with regard to traditional copyright terms vs. CC terms (HINT: I think so). But to critique the fact that CC offers less granular control is sort of to miss the point of why it was created in the first place.

    Me? I have no interest in control. So CC works well for me.

  9. Hi Todd -

    I appreciate your response, but the idea that “Editorial use for a for-profit publication IS commercial use” would mean that almost everything is commercial use. Again, it doesn’t matter if a giant corporation owns the newspaper or magazine that is publishing a photograph — if it’s editorial usage, then it’s editorial usage in most cases.

    Have a look at photo attorney Carolyn Wright’s article on commercial vs. editorial usage on her blog:

    http://www.photoattorney.com/2006/02/commercial-vs-editorial-use-of.html

    Cheers,

    Joe

  10. Well, almost everything is commercial use, when money changes hands for the product where you used it. There’s really three different kinds of uses to consider when it comes to photography: Advertising/promotion (“commercials”), which has the most restrictions, like needing a release for everyone in the image and so on; editorial/news/general interst use, which is more relaxed but definitely commercial (you may get confused between “commercial use” and “used for commercials”; I know I do); and artistic and fair-use like excerpting, parodying and so on.

    I’d say the diciest distinction is between artistic use on one hand and commercial use on the other. If the artist gets money to do a work, or sells their works, shouldn’t that be commercial as well? In music it sure is – just try “excerpting” or “interpreting” more than a bar or two of someone else’s work, sell the record and watch the lawsuits roll in with the returning tide. But that distinction is not a problem specific for CC licenses; that is a major elephant in the copyright room already.

    CC is great precisely because I do not need to worry about fine-grained control. I use “attribution no commercial” – is you use the image, tell people from whom you got it, and you can’t make money from using it- if you do want to use it in commercial contexts, contact me.

    I’ve had a few such cases already, at least one who I’m not even sure he needed to ask me. The image was for use in a scholarly thesis, which is pretty marginal, but since it does get published and (theoretically) sold, he contacted me. He got to use it in exchange for a copy of the book.

  11. Again, I am not an IP attorney, but unless it’s an advertisement, magazine use is editorial use.

    Use Plus is a non-profit “worldwide coalition of leading companies, respected associations, and industry experts” whose goal is “to clearly define and standardize the core aspects of image licensing and its management.” Here is how Use Plus defines these terms:

    Commercial Use: A descriptor for image uses that are part of sales or marketing efforts.

    Editorial Use: Describes work in a periodical, online, on electronic media, presentation and/or broadcast that is educational or journalistic in nature, and which does not promote a product, person, service or company based on sponsorship.

    The art issue is separate, but a search on Philip-Lorca diCorcia’s lawsuit might surprise you.

    Even if Creative Commons puts your images into a gray area on this matter, why would you want to make it easier for large corporations to use your images without asking or paying you?

    Cheers,

    Joe

  12. What “Use Plus” uses the word “commercial” and “editorial” to mean, respectively, doesn’t really matter, of course; with A CC license it is the licenses definition that goes. And while something may or may not be editorial, it still qualifies as commercial use for the purpose of CC licensing. Note, of course, that there are in addition various fair-use excemption, but they are of course exempting any other license or use restriction you may want to impose and doesn’t affect CC licenses specifically.

    As for the other question: if someone isn’t making money directly off my work, why should I care? For what little my pictures are worth (and it’s not a lot, I can assure you), I’d much rather see them used than not. This is all a hobby, not a living, and I have neither the capacity nor the interest to change that.

    If a paper for some reason (the picture editor has gone blind and not told his colleagues?) would want to use an image of mine they’d have to pay whatever the going rate is, I suppose. Unless it’s a small paper (or specialized magazine) and the going rate is rather low, in which case it’s probably more of a headache to me to tax and account for the money than it’s worth to me, and I’ll probably just give permission in exchange for a copy of the publication with my image in it. Again, I’m doing this for fun, not for profit.

  13. Hi Janne -

    I used the Use Plus example to illustrate the common photo industry definitions of commercial and editorial. Section 4B of the CC license seems unclear to me on this issue. The only person qualified to interpret the CC license on this matter would be an experienced I.P. attorney who is familiar with U.S. Copyright Law, not you or me.

    Let me tell you a story: Let’s say you are a car salesman. You work at a BMW dealer. You worked your way up from janitor to being the top salesman over a few years. A Toyota dealer moves in across the street. Now let’s say the Toyota dealer across the street decides their cars aren’t worth anything — they would really just love for people to be driving their Toyotas. So they start giving away their cars for free — the only catch is, if you get a free Toyota you have to have a license plate holder with the salesperon’s name on it. The Toyota dealer may put the BMW dealer out of business. A few people might still buy BMW’s, but most people will take the free Toyota.

    Cheers,

    Joe

  14. To take the Toyota analogy, if they aren’t actually losing any money by giving them away, then I don’t see a problem with it. If the BMW dealer wants to be able to charge for their cars, they have to give people a reason to pay rather than go with the Toyota. It may be much better performance or quality, give higher status value (don’t ever underestimate that – some people buy outrageously expensive stuff simply to be seen as the kind of people who are able to pay those kinds of prices), or some other edge. And yes, if the BMW dealer can’t find any reason for people to buy, they’ll go out of business.

    Me, I’m happy to give away my cars if you’ll just use my customized nameplate. It’s no threat to people working as photographers, of course; if their quality had been no better than what I produce they certainly wouldn’t qualify as professionals in the first place.

    But can this in the future mean less business overall for the business (as opposed to the practice) of photography? Of course. Look at graphic design – once upon a time (thirty years ago), a professional would design and typeset anything from business cards to restaurant menus. Sure, there was big branding jobs and so on, but that kind of small-scale stuff was the bread-and-butter for a lot of professionals.

    Then desktop typesetting happened. No, amateurs doing their own stuff is not as good as a professional doing it, but it’s good enough – and a lot cheaper. So the overall number of graphic designers are a lot fewer today, and a much higher proportion of all business is big, high-profile jobs. If you’re at the top you can make an extremely good living, but it’s become much harder to reach, and the skil competition if much fiercer.

    I fully expect photography to go the same route. The Michael Grecco’s and Lennart Nilsson’s of this world have nothing to worry about. Neither, probably, does the newspaper photographer (who’s really half photographer, half news person, really). But the jobbing “pro”, doing small assignments for a lot of different people is probably going to find life very, very tough in the future.

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  16. A clarification concerning the PLUS standards. PLUS is a multi-industry, international coalition. Standardized definitions of terms are developed and approved by consensus of participants including photographers, illustrators, designers, art buyers, picture editors, stock agents, publishers, museums, libraries, researchers and others. Thousands of standards reviewers worldwide participatied in the standards development process, including a significant crowd from the UK and across Europe. as of this writing, PLUS is forming “working groups” in a number of countries, charged with ensuring that the PLUS standards include regionally specific licensing terminology and definitions. With respect to the term “commercial,” this term has been commonly used throughout varous industries to advertising usage. I suggest that this term is often misunderstood, and for that reason, should be avoided, where possible, when licensing images. While the PLUS definition for the term is included in the PLUS Glossary, the term is deliberately omitted from the PLUS Media Matrix, replaced with more precisely descriptive terms. PLUS is in communication with Creative Commons and will work cooperatively with CC on a solution.

    Jeff Sedlik
    President, PLUS Coalition
    http://www.useplus.org

  17. Joe thanks for pointing me to your CC write up. Its a great post. CC is a noble cause, but for photographers I’m not sure its the most logical choice to pursue.

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