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Thursday, October 14, 2010

Creative Commons In Practice

While it can be a powerful tool for getting your work noticed, Creative Commons presents problems for unwary photographers

Imagine you’re a photographer trying to get your work noticed. You’ve heard that Getty Images and some publishers are utilizing the photo-sharing website Flickr as a way of locating stock images, so you open a Flickr account and upload images. And since Flickr makes it easy to apply a Creative Commons license to your images, you select one of those licenses based upon the summary of key terms. It’s not until after you discover that a publisher or advertiser has downloaded and used your images without compensation that you realize there may be problems with the license.

If this sounds like something of a nightmare scenario, the reality is even more terrifying. Ian Harding, an aspiring photographer in Aldershot, UK, found himself in just such a situation after learning that the British tabloid the Daily Mail/Mail on Sunday had downloaded one of his images—a photograph of a waterfall in Snowdonia National Park—from Flickr and published it together with an article about a father and daughter who died after falling from the waterfall. While the tabloid published the photograph with a photo credit (identifying Harding by his Flickr screen name, Stan160), it neither sought consent nor paid Harding for the use.

Figure 1: Graphical representation of a Creative Commons license
Harding’s exchange with the Daily Mail proved unproductive. “I contacted [the Daily Mail] expressing concern that my permission wasn’t sought at any point, and requesting payment to license the image for commercial use,” says Harding. In response, Elliot Wagland, the Daily Mail Online Picture Editor, explained that “[w]e have used your waterfall picture in good faith to illustrate a sad and tragic story.” Wagland attempted to justify the Daily Mail’s refusal to compensate Harding with the explanation that “we are familiar with the [Creative Commons] terms. Our website comes under the editorial use rather than commercial use, [and] we have also given you full attribution on this picture.” While Wagland was willing to remove Harding’s image from the Daily Mail’s website, the Daily Mail was unwilling to compensate Harding for the time his image appeared on the website.

Harding’s situation is hardly unique. An incident that garnered considerably more attention involved a church counselor, Justin Ho-Wee Wong, who posted photos from a fund-raising car wash, including a photograph of then-16-year-old Alison Chang, on Flickr, at which point the images were available for licensing under a Creative Commons license. According to court papers, Virgin Mobile downloaded a photograph of Chang and used the image to promote Virgin’s free text messaging service on a billboard in Australia.

Creative Commons In A Nutshell

Creative Commons is an organization that developed and promotes a series of license models that can be used by copyright owners who want to share their work with others. Under the Creative Commons approach, licenses vary from those having almost no restrictions to others having a great many restrictions. For example, the more restrictive of the licenses permit licensed works to be used provided that proper attribution is given and provided the works aren’t used for commercial purposes. At the other end of the spectrum, the least restrictive of licenses even caused one U.S. Court to note that a license requiring only attribution “provides for the most unrestricted use available to any worldwide user (including commercial use and no monetary payment).”

There are several different ways to license images under a Creative Commons license. The most direct way is to visit the Creative Commons website (www.creativecommons.org) and select “License” from the home page. What will follow is a list of questions that, when answered, will result in the website suggesting one of the various types of licenses available. For example, if you answer that you don’t want to allow commercial use of an image, and you don’t want to allow modifications of an image, and that you’re in the United States, the website probably will recommend the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 United States License. This license may be represented more simply by the Creative Commons graphic (Figure 1).


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