News and Views from Dave Wilson

Clarifying Creative Commons

by on Sep.10, 2011, under Photography

Creative Commons

Over the last three of four years, there has been a lot of discussion about the pros and cons of Creative Commons (CC) licensing but it appears that there are still widespread misunderstandings of how this form of licensing works and exactly what a Creative Commons license actually means. One common perception is that the CC license is equivalent to making your content (photos, music, art, writing or whatever creative output you are licensing) completely free for everyone to use but this is not the case. Before delving into CC specifically, though, let’s consider the broader subject of content licensing.

When a copyright owner (the person who created the image, wrote the paper, painted the artwork, etc) is approached for permission to use that work in some other publication (book, magazine, newspaper, web site, etc), an agreement is drawn up between the copyright owner and the licensee defining exactly what the licensee is allowed to use the work for, how it may be displayed, the time period that it may be used for and the fee that is payable to allow such use. This is a license agreement – a formal contract between the owner of the work and the person wishing to use it – and it is intended to protect both parties in the agreement since a well-written license will make it completely clear what the licensee can and can not do with the work.

Most photography businesses, press organizations and stock libraries classify their images as “All Rights Reserved”, indicating that the images may not be used without a specific license agreement from the copyright holder. Writing up and negotiating license agreements is a vital part of the photography business but it can also be a time-consuming process. In some cases where copyright owners want to allow particular free usage rights to some subset of users, it is rather burdensome to require an individual license agreement between the copyright holder and every user of the work and this is where Creative Commons comes in.

The central objective of Creative Commons licensing is to facilitate no-cost sharing of creative works under particular circumstances without the need to negotiate a separate license for every individual use. The copyright owner decides upon a set of acceptable usage terms and an acceptable group of users, and publishes these terms alongside the work in the form of one of a number of standard Creative Commons licenses. In increasing order of restrictiveness, these standard licenses are:

CC0 CreativeCommons Zero

This is a “no rights reserved” license that puts a work completely into the public domain. The owner (who is giving up ownership and copyright by assigning this license) is allowing anyone, commercial or non-commercial, to use the work for absolutely anything without restriction. This is the least restrictive CC license and the one which most people seem to equate with CC. From my experience, however, this is seldom used by photographers since it effectively prevents licensing of an image by any other means in the future. This is also the license which is most often equated with CC by those who misunderstand the way CC works and assume that assigning any CC license means giving up copyright to your images.

Attribution

This is the least restrictive of the mainstream CC licenses and is rather similar to CC0 with the only difference being that all uses of the licensed work must credit the original creator. Aside from this, the work can be used for any commercial or non-commercial purpose, displayed anywhere and modified any way the user wants.

Attribution-ShareAlike

Extending on the previous license, the CC BY-SA license adds another restriction but is still extremely open. Works using this license may be freely used for any commercial or non-commercial project and may be modified in any way the user wants on condition that the original owner is credited and that the derivative work is also licensed under the same CC BY-SA license. For those of you familiar with open-source software, this is rather similar to the GPL license frequently used in that arena.

Attribution-NoDerivs

The CC BY-ND license adds another restriction, prohibiting the use of the work in any derivative works. This would, for example, forbid the use of elements of your photograph in a collage or compositing project. Like all earlier licenses, BY-ND requires that the owner receive credit whenever the work is used and allows both non-commercial and commercial use of the work.

Attribution-NonCommercial

At this point, we get to the first of the CC license types which is of potential interest to photographers keen on retaining licensing rights for commercial use while allowing free non-commercial use of images. The BY-NC license allows use of the work only in non-commercial projects and requires that the owner be credited in all such uses. This flavour of license also allows the work to be used in derivative works (collages, composites, remixes, etc) again on condition that these are non-comercial. The main thing to note here is that commercial users are granted no rights to use the image and must approach the owner for a separate license specific to their intended usage.

Attribution-NonCommercial-ShareAlike

The BY-NC-SA license can be thought of as a non-commercial version of the earlier BY-SA. The work may be used in non-commercial projects, and derivative works are allowed. All uses must credit the original owner and must be distributed using the same BY-NC-SA license.

Attribution-NonCommercial-NoDerivs

This is the most restrictive CC license and the one that I apply to the vast majority of my photography. The license allows images to be used non-commercially in their original form (no derivatives are allowed) as long as the original owner is credited with each use.

It seems clear that the first four of these licenses are of no use to any photographer intent on licensing their images as a business. These licenses allow anyone to make use of images published using them and leave licensing options at best very limited. It is also true that the non-commercial flavours of CC license make little or no sense for photographers working for single clients – wedding and portrait photographers, commercial photographers or anyone working on assignment. In these cases, photography is being provided specifically for one client so sharing with others is either pointless or actively discouraged. Why would your client want their ad campaign stills used elsewhere?

For some photographers, art photographers such as myself for example, a license that allows our work to be freely distributed for non-commercial uses while leaving us the ability to license that same work commercially makes great sense. BY-NC, BY-NC-SA and BY-NC-ND work can be freely displayed on blogs, personal home pages, art review sites, non-commercial posters (for example, advertising performances or art events) on condition that the owner’s name also appears alongside the image. This offers a marketing opportunity for the photographer with no financial outlay required and can lead to requests for other, paid uses of the image.

It is argued that this system removes a revenue stream from all the non-commercial users who pick up the image at no cost. I strongly suspect, however, that very few of the people using images under a CC license would otherwise have requested a paid license for that image. As we all know, image piracy on the internet is rife and many people pay no heed to any published license terms before pulling arbitrary images for use on their web sites. By using a CC license, I can allow those people to do this yet still service license requests from commercial clients whose use is likely to be higher priced and, hence, worth the time investment required to prepare the license agreement.

Another somewhat thorny issue related to CC-NC licenses is the definition of the word “commercial”. Just where do you draw the line? If someone is running a Google AdSense bar on their blog or some affiliate product links, are they still allowed to use CC NC images? The license terms state “You may not exercise any of the rights granted to You… in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation” so there is a certain amount left up to the interpretation of the owner. My rule of thumb is to request payment if my image is used on any site run by a commercial entity – a corporation or other organization whose primary motivation is to sell a product or service – or a site which is obviously intended purely to funnel traffic to advertisers and which offers little in the way of original content. In such cases, I will send a letter to the site owner offering to license the image and giving the option for them to remove it. In most cases, the image disappears within a couple of days but in some a license agreement is negotiated and I receive payment for the use. In one particularly egregious case last year, a local telephone directory company made use of one of my CC-BY-NC-ND images on the cover of a directory without requesting a license in advance. I considered this to be a strictly commercial use and we negotiated a fair license fee after the fact.

Overall, while Creative Commons licensing is not for everyone, it offers great benefits to photographers producing predominantly art images, allowing wide dissemination of those images via non-commercial users while retaining the rights necessary to profit from commercial uses of the same images.

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