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?
- For more information about Creative Commons, please see the Creative Commons FAQ
- For a searchable database of Creative Commons images, there is a Flickr Creative Commons Pool