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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

Enforceability Of Creative Commons Licenses And Related Pitfalls

One aspect of the “Defining Noncommercial” study where there was a noticeable difference between content creators and users was in the groups’ respective beliefs as to the enforceability of Creative Commons licenses: 85% of content users, as compared with only 63% of content creators, trust that Creative Commons licenses are enforceable.

Although there are still no reported court decisions in the U.S. involving the enforceability of Creative Commons licenses, courts in the Netherlands and Spain have upheld the validity of such licenses.

In a ruling described as the first known court decision involving a Creative Commons license, Weekend, a Dutch tabloid, found itself on the losing end of a suit filed by former MTV video jockey Adam Curry. Curry brought the suit against the Dutch tabloid after it copied and published photographs of Curry’s 15-year-old daughter, which had been posted on Flickr. According to reports, Weekend didn’t realize that the photographs posted on Flickr’s website were covered by a Creative Commons license. Still, that didn’t prevent the Dutch court from threatening the tabloid with the imposition of a 1,000 euro fine if the tabloid published any of the photographs again without permission. As Curry explained in his blog, however, the Dutch court declined to impose a penalty for the images published because Curry and his family were celebrities, and because “these were ‘really cute vacation pictures’ that show no commercial value.”

Although Curry was less than thrilled by the outcome of the case, Creative Commons applauded the decision. “The decision confirms that the Creative Commons licensing system is an effective way for content creators to manage their copyrights online,” said Stanford Law Professor Lawrence Lessig, one of the Creative Commons cofounders and board members. “The decision should also serve as a timely reminder to those seeking to use content online, to respect the terms that apply to that content.”

European court decisions beg the question of whether a U.S. court would uphold a Creative Commons license. In light of a relatively recent court decision involving the enforceability of Open Source licenses, it stands to reason that a U.S. court would enforce a Creative Commons license. However, the Open Source license decision also highlights the importance of registering copyrights. Generally, where a licensee exceeds the scope of a license, the licensee may be liable for copyright infringement. However, unless you register your copyrights in a timely fashion, you’ll limit your ability to recover statutory damages and attorney’s fees. Thus, licensing images under a Creative Commons license isn’t an alternative for promptly registering your copyrights.

The Open Source case also highlights a potential problem inherent with any license agreement, including Creative Commons licenses (at least until interpreted by a greater number of courts). Where the terms of a license agreement are conditions, the terms may limit the scope of the license and be governed by copyright law (which also leaves open the possibility that breach of the license will be considered copyright infringement). If, on the other hand, the terms of the license are only covenants, they’re governed by contract law. While the difference may not seem significant, the remedies for breach of contract are very different from the remedies for copyright infringement. For example, there are no statutory damage awards in breach of contract actions. Similarly, in countries such as the U.S. that adhere to the rule that a court may not award attorney’s fees unless authorized by contract or statute, if the license is governed by contract law, then attorney’s fees can only be awarded if the license expressly provides for such an award (and the Creative Commons licenses don’t contain such a provision).

Avoiding The Pitfalls

Above all, Creative Commons isn’t an alternative to copyright law and doesn’t minimize the importance of promptly registering your copyrights. Even Creative Commons’ own FAQ page encourages registration of copyrights so that rights may be enforced in court and underscores that their licenses aren’t an alternative to the protection afforded under copyright law. In order to put yourself in the best position possible if faced with the prospect of enforcing the license agreement, you should timely register your copyrights.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Fla., and a professional photographer who has covered sporting events for a quarter century. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .


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