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.
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).
The symbol “CC” within a circle signifies that content is licensed under a Creative Commons license. The other icons indicate that attribution is required (“BY”), commercial use is prohibited (“NC”) and derivatives may not be created (“ND”) (Figure 2). In instances where there’s no good way to present the graphical representation, the name of the selected license may be stored in metadata (EXIF or IPTC).
On a website like Flickr, licensing can be set on an image-by-image basis. With Flickr, however, you also can select a default Creative Commons license that will apply to all images uploaded to your Flickr account. While applying a default license to all images uploaded may be convenient, it’s also potentially problematic. Although not detailed on the Flickr website, and not explained in the summary of license terms on the Creative Commons website, the license grant is “perpetual (for the duration of copyright),” and while the owner of the image may elect to distribute the image under different license terms or cease distribution of an image, the owner can’t terminate license grants once copies of the images have been acquired by others. In other words, once someone downloads a copy of the image, their right to use the image can’t be terminated unless they violate the license terms (and the terms can’t be changed after the fact).
Lost In Translation
While Creative Commons was intended as a free system devised to simplify the licensing of content, including photographs, Creative Commons hasn’t entirely lived up to its self-described mission of “making it easier for people to share and build upon the work of others, consistent with the rules of copyright.” One of the reasons for this is due to efforts by Creative Commons and others to simplify a set of license terms and provisions that are anything but simple and straightforward.
For example, the simplistic description of license terms, referred to by the Creative Commons website as the “human-readable summary of the Legal Code (the full license),” summarizes the “noncommercial” restriction as meaning that “[y]ou may not use this work for commercial purposes.” Given this overly simplistic explanation of the restrictions, it’s unsurprising that Harding and others considered the Daily Mail’s use of his photograph to be a commercial use. As Harding explained, “[t]he website features prominent commercial advertising on all pages, including the one that contains my photograph. I consider this commercial use…in violation of the ‘non-commercial’ clause of the [Creative Commons] license.”
While discussing Harding’s situation with the Daily Mail, another Flickr user, Tim Chapman of Halifax, UK, identified definitional confusion in the Creative Commons license agreement. “A quick look at the definitions on the Creative Commons site isn’t encouraging,” says Chapman. “I may be missing something, but there’s no clear definition of what comprises commercial use.”
The actual language of the license is sufficiently malleable to provide little, if any, guidance in resolving whether a use is commercial or not. The restriction against commercial use provides that “[the licensee] may not exercise any of the rights granted to [the licensee]…in any manner that is primari
ly intended for or directed toward commercial advantage or private monetary compensation.” The license restriction also explains that “[t]he 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.”
When the actual language of the Creative Commons license is considered, Wagland’s argument that the Daily Mail’s “website comes under the editorial use rather than commercial use” begins to unravel. According to the language of the license itself, the question isn’t whether the use is commercial or editorial, but rather, whether the use is “intended for or directed toward commercial advantage or private monetary compensation.”
Apparently cognizant of some of the problems associated with its licenses, Creative Commons commissioned a study, funded by a grant from the Andrew W. Mellon Foundation, to assess how the online community understands the terms “commercial use” and “noncommercial use.” Some of the study’s findings are particularly revealing. For instance, the distinct majority (greater than 80%) of both content creators and users surveyed believe that the use of a work on a web page supported by advertisements, with the user profiting from the ads, was definitely a commercial use. Even in situations where works were used on web pages supported by ads, but where the web pages resulted in no profits, the majority of content creators and users responded that the use was commercial. While the study findings are extensive (and available online at wiki.creativecommons.org/
Defining_Noncommercial), it doesn’t appear that any effort was made to evaluate the “editorial” versus “commercial” dichotomy illustrated by Harding’s situation with the Daily Mail or other similar situations.
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 [email protected] or [email protected]