*This is an editorial piece. I am not a lawyer. Research this material before making decisions based upon it. *

Creative Commons is a great concept; often misunderstood, employed incorrectly and as a result gives those employing it a false sense of security.

A few days ago I posted a video titled How Creativity Is Being Strangled By The Law where Lawrence Lessig, founder of Creative Commons, spoke about the digital divide between current copyright law and use of copyrighted material on the Internet. I mentioned that I thought about the discussed concepts in the video twice, once as an average Internet user and once as a photographer.

As an average Internet user I enjoy seeing clips of my favorite shows and the transformed work of music and movies on YouTube and similar web sites. Like most I find it fun, entertaining and a great way to take a break from my hectic schedule. To Lawrence Lessig’s point this type of user generated content is indeed a pillar to how current and future generations will communicate.

As a photographer I view this discussion on user generated content & copyright protection in different terms. I view this discussion in the terms of securing the means to make or try to make a living from my photographic efforts. Copyright law affords photographers the means to reserve rights to their work and obtain damages for improper use of that work. It is this protection that allows photographers to pursue a variety of business models or marketing strategies that center around the Internet with out fear that their work will be used improperly. As I’ve discussed in the past maximizing the protection afforded to you through the law requires that photographers formally file their copyrights with the Library of Congress (see Copyrights: Protecting My Photography).

Copyright law has been fairly black or white until this point.
-> You either are the copyright holder or you aren’t.
-> You’ve either formalized your copyrights with the Library of Congress or you haven’t.
-> You either have granted permission for others to use your copyrighted material or you haven’t.

Unfortunately copyright law has not been revised to account for new types of delivery mechanisms and technologies such as the Internet. As a result, if you watch the news, lots of test cases have been bouncing around the U.S. court system that will inevitably redefine the law incrementally. U.S. copyright law has not kept up with the times primarily due to corporate lobbying. Lawrence Lessig’s solution was the creation of Creative Commons, giving copyright holders the ability to define the shades of gray missing from current legislation. The goal of Creative Commons to quote their web site is…

Creative Commons provides free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry. You can use CC to change your copyright terms from “All Rights Reserved” to “Some Rights Reserved.”

Creative Commons defines the following (6) licenses with in the bounds of existing copyright law:

1. Attribution (by)
2. Attribution Share Alike (by-sa)
3. Attribution No Derivatives (by-nd)
4. Attribution Non-commercial (by-nc)
5. Attribution Non-commercial Share Alike (by-nc-sa)
6. Attribution Non-commercial No Derivatives (by-nc-nd)

See the definitions of each on the About License page on CreativeCommons.org

Before I go further I want to emphasize that Creative Commons licenses are not for everyone and to that sentiment they are not for me. I have not, nor will I ever employ one for my photography. More on why shortly . If you research Creative Commons licenses I highly recommend reading Cory Doctorow: Creative Commons. Cory Doctorow gives a great overview to Creative Commons.

So What’s Wrong With Creative Commons?

The Creative Commons approach has problems on two fronts.

First…
Copyright law is not for the light hearted and as noble as the Creative Commons movement is to make copyright law more digestible, those employing it seldom read the fine print. The slick iconography assigned to each license type facilitates copyright holders to ineptly glance over details of the licenses. Unlike similarly developed clothing care iconography, now employed on mass produced clothing tags, an errant interpretation can result in a catastrophic outcome of an infinitely greater scale.

In concept Creative Commons licenses are great. They address the new paradigm of user generated content. Unfortunately most copyright holders whether amateurs or professionals do not understand nor are able to predict the infinite types of use that may come of their work as a result of their Creative Commons license choice. In principle the open ended licenses are great, but in practice they actually work to the advantage of others. This is most notably the case when it comes to commercial use. A remix on YouTube is quite different than a photograph being incorporated into a marketing campaign.

Such was the case with a photograph on Flickr by Justin Wong that was licensed as Creative Commons Attribution and used in the Virgin Mobile Dump Your Pen Friend ad campaign. What does Creative Commons Attribution mean?

“This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms”
- Creative Commons

Although Justin Wong released his photo with this license his friend who was photographed did not knowingly consent to the use of her likeliness for such purposes. As a result she filed suit against Virgin Mobile.
Virgin Mobile sued over Flickr image used in ad – MSNBC

Not only is this case a perfect example of copyright holders not understanding Creative Commons licenses it’s a perfect example of companies not understanding them and other basic principles such as model releases. This lack of understanding runs both ways and amounts to a certain degree of licensing and rights chaos.

Second…
As noted in Cory Doctorow’s article, Creative Commons licenses are “global and irrevocable. Once you release a work under a CC license, you can’t take it back, ever, and they apply equally to everyone.”

Just this past week a photo of Yahoo CEO Jerry Yang by Mitch Aidelbaum made its way to the front page of CNET’s web page. Although CNET had licensed and used the image previously with Mitch’s permission the second use of the image caught Mitch and his friends by surprise as it wasn’t attributed. The original license of the image was “Attribution 2.0 Generic” according to Mitch. Although CNET seems to be in the wrong regarding the attribution, like Justin Wong both photographers attempted to change the licensing after they realized that their photos were being used in ways they didn’t agree. According to the underlying fundamentals of Creative Commons licensing once you release a photo with a designated license it is forever out there as such, no matter what changes you attempt to make later. In this instance CNET will likely improve its documentation of image licenses before use. so they better conform to them and so that they can prove with out a doubt what they are or are not allowed to do with them.

I am an idealist at heart, but to be pragmatic the vision of Creative Commons seems to work best for non-commercial use. As well intentioned as Creative Commons and/or Lawrence Lessig’s efforts are when it comes to commercial use the vast majority of copyright holders are not educated enough in this area of law nor do they understand the extent to which their work can be used if not exploited. Unknowingly the efforts of Creative Commons has opened the doors for companies and marketers to use imagery with little restraint and for little to no cost. In no uncertain terms some of these licenses are essentially blank checks. Where photographers with traditional “All Rights Reserved” license terms once had the ability to tailor usage constraints up front, photographers with Creative Commons licenses containing pro-commercial clauses give companies the go ahead to use images in ways the photographer may have never intended or could envision.

In this regard the very thing Creative Commons licenses work to address also works counter to. A fan casually making an edited video of TV clips to the latest #1 song for fun and putting it on YouTube is one thing, but irrevocably opening the door for companies to use a copyright holders work for profit is another. Ironic that what Lawrence Lessig speaks of in his “How Creativity Is Being Strangled By The Law” video equally helps and hurts the copyright holder. To be fair at the end of the day its the responsibility of the copyright holder to properly review and select the correct license. Unfortunately most artists seldom know where they’ll be in 10 years. 10 years ago I was a hobbyist and today I’m making the effort to establish myself as a professional. 10 years ago I had no notion of copyright law like the majority of people taking photos today. If I had carelessly chosen the wrong Creative Commons license (assuming CC existed) then I’d have removed or detrimentally impacted my ability to generate income off of 50-60% of my photographic work.

Copyright holders, especially photographers no matter what level of expertise or status should be as conservative as possible when it comes to copyright licenses. Nothing will ever be safer than “All Rights Reserved” and for that reason I find no value in Creative Commons licenses. With out a doubt U.S. Copyright law needs to be reviewed and updated, but photographers should not be under any illusion that Creative Commons licenses will make their lives better or easier. It will only make the lives of those who want to use your work easier. Photographers need to work hard to think long term, track usage of ones work and blatantly associate their name with it. Why?

As Creative Commons licensing gains momentum our laws are changing, stacking the deck against copyright holders. U.S. legislation is being proposed and will again go before Congress dealing with “orphan works”. Copyrighted material not easily traced to the copyright owner could more easily be converted to pubic domain work. If this legislation were to pass in conjunction with growing Creative Commons licensing use photographers could be in an incredibly difficult position. Once an image is out and used under a CC license it may become difficult or impossible for someone to track down the photographer if that image is repurposed in an uncontrolled fashion. Dependng how the orphan works law is written the end result of this example could mean the image would eventually be used for purposes outside of the specified CC license if the photographer can’t be identified or found. Copyright law is indeed in flux and for these reasons now more than ever photographers need to be as conservative as ever in regard to work they’d like to preserve the rights to.

[tags]creative commons, creativecommons, copyright, photography, photograph, attribution, Lawrence Lessig, Larry Lessig, Flickr, Jerry Yang, CNET, Virgin Mobile, license, law, legal[/tags]