Burningbird

I had a similar experience…from the other end of the process! I was working on a promotion on my employer's website and used both stock xchng and Flickr to find photos.

I did try to be sensitive to the photographers and models, and I ended up having some great email exchanges. And I skipped a few otherwise very cool images that were non-commercial CC or didn't have model releases.

Oddly enough, I used a CC-licensed photo from Stewart Butterfield, of him and his mom when he was a little kid. With the license on that one, I could have just used it without saying a word, but that didn't seem right. We swapped some very pleasant flickr-mail, and he decided to change the license but gave me permission anyway.

I wonder if it was a shock to him, realizing that one of his childhood photos could potentially be used as an ad to sell, in this case, Visa gift cards. It would weird me out, that's for sure!

Charles Miller has a great take on this.

PS.: oooh Preview button! With rounded corners!

Of course they're a "feel good" organization, but wasn't that obvious before the CC licenses were chosen? Did anyone really not realize an organization named "Creative Commons" had an agenda of pushing us to release creative works into the commons? It's not like they're hiding it, pretending to be neutral.

Elaine, but you did due diligence and contacted the people. Virgin just grabbed and used.

Interesting about Stewart, though.

Aristotle, um, did you check out the items I linked in my post? Yes, I actually like my buttons.

Scott, no one is saying they've hidden anything. But the organization refuses to even acknowledge problems have happened with misunderstandings about the license. They're steadfastly determined to only see the good. They don't want themselves to be seen as anyway responsible for when acts like this happen.

I think that in many cases there's a fundamental lack of understanding by people who choose to CC-license their creative works and by those who think about using those works in other contexts.

And where Creative Commons the organization may be falling down is in helping people get to that understanding. Which is unfortunate.

(Is it ironic that I'm searching stock xchng right now looking for ideas for a new project?)

What organization acknowledges the problems with what it's promoting? I agree it would be great if they all did that, but I think that's an unreasonable expectation. I don't like Coke or libertarianism, but I don't blame Coca-Cola or the Cato Institute for promoting them without acknowledging problems. That's the whole reason those organizatios exists, after all, so I would expect no different. When I want opposing views, I look to organizations with opposing agendas.

Shelley: oops. I clicked both Flickr links and checked where the Doug link points to – but not the uproar link. Mea culpa.

If you read the discussion about the peace sign girl's photo, the big issue appears to be Virgin Mobile's mistaken assumption that a photo licensed for commercial reuse under Creative Commons has taken care of the necessary model releases to offer such license.

Since Virgin's advertising agency has long experience on the issue of working with models, and it's foolish to think that thousands of CC-licensed photos in places like Flickr secured model releases, I put more of the onus on them.

However, it does seem to be true that Creative Commons has done a poor job of making adopters of its commercial reuse license recognize the other obligations associated with that decision. The other licenses and legal obligations faced by commercial photographers should be explained.

Indeed, as you say, you are only a layman.

When you say "In many countries, including the US and Australia, commercial use of photos requires signed consent of identifiable people, and signed consent of a guardian if the person is under legal age" you give everyone who reads your blog the impression that this is a facet of copyright.

But it isn't. It is completely separate legal issue.

Creative Commons licences deal with copyright. They don't deal with every other aspect of law, how could they?

CC licences don't for instance give people permission to gratuitously insult the creator of a work, that eventuality is covered by the law of tort. So granting a CC licence on something does not mean that a person can do whatever with it. It simply gives them some copyright permissions.

What about Virgin's well paid legal team, they must know about model releases.

Well, while I tend to agree that there is much to be done by CC to educate users about the implications of their licenses (in the end, these are their central 'product'), I would say that the movement is relatively 'open' and that some initiatives are starting to do just that. I have ben always advocating for greater awareness and proper understanding of the lcicenses. Hopefully these incidents would help my point become more appreciated.

I am surprised by your statement that people are socially pressured and overly encouraged to use free licenses. Surely any pressure (though I wouldn't call it that) on part of the free culture community is next to nothing compared to the automatic mechanisms that make one license their works in an "all rights reserved" model. And it is hard to talk about pressure it the licensor has to herself choose a license and make the work available - that's called free choice.

I also don't understand why you don't expect people who use the licenses to self-educate themselves about the copyright system in which they are functioning. People involved with Creative Commons are doing a lot of work educating people about the copyright system in general. But it is every author's responsibility to understand the legal system they function it - be it CC, or the "dominant" one. It's childish to place the blame on anyone else to excuse people's lack of knowledge.

Yes, we live in complex societies full of unintended consequences of our actions. But instead of going around blaming others, it's better to educate oneself - a layman can still learn a lot.

Andrew, it has nothing to do with copyright, but everything to do with the CC license for commercial use.

The issue of model release isn't necessarily cut and dried from all my reading on it. Yes, the publisher is responsible for ensuring all releases have been obtained, but if assured by the photographer that all such legal matters have been attended to, doesn't the issue then become more complicated?

When a photo is released for permission for use for commercial purposes, doesn't this imply that all related issues associated with the use of said photo have been taken care of by the person offering the photo for commercial use? After all, why on earth would a person put out a photo for commercial use without understanding that organizations could use it for creating ads?

The CC licenses were created in such a way that no one need never contact the owner of the work, as long as they are using the work per the attributes attached to the license. With the photos used in the ads, the only stipulation was that attribution must be given, and it is with the Mobile ads (a link to the original photo at Flickr). Permission to use the work commercial was given, and more importantly, permission to do so without contacting the owner of the work directly is also given with a CC license.

That makes things rather interesting from a legal perspective, don't you think?

The debate now is whether Virgin's team did know all of this. I'll have to assume this went through a team of lawyers and they do believe they're protected. Perhaps we'll find out some day.

Or perhaps that's part of the plan — use the CC licensed photos from Flickr to generate noise as part of the campaign.

The thing is, if CC licenses are going to have a commercial attribute, the CC organization has a responsibility (not necessarily legally but morally) to provide clear, concise writing telling people what this means. In fact, I don't think there should even be a commercial option for CC licenses — I think commercial use is too complicated to be handled by something such as a CC license.

But Anas is right, in my opinion more education is needed at the CC site. Taking it one step further, there is little at the CC site that really gets into the negative aspects of using these licenses. None of these 'negative' events seem to reach the front page of the site. Now why is that? All the 'good' uses of CC seem to, but never the ones with negative repercussions. It's almost like the CC folks don't want to acknowledge that these can be abused and that people using them can, and have been, bitten in the butt.

Yes, just checked the English version of the site, and nope, not a word about this issue anywhere to be seen. Not even a peep. That is incredibly irresponsible, and that's where I lose respect for the organization.

Tarkowski, sure there's tons of material about copyright and fair use. So, what you're saying, then, is people should just keep all rights reserved on their works. After all, the education provided the public is about copyright and fair use. There's little about Creative Commons licenses, so why on earth would anyone in their right mind use them?

I can understand your argument to some degree, but like a poster above said, CC take care of the copyright element of a piece of content, nothing else. It's kind of disappointing then, that you'd write a post criticizing CC and not Virgin, which is a huge company with tons of lawyers on staff who should know that YOU NEED TO GET MODEL RELEASE FORMS for god's sake. ESPECIALLY WHEN YOU'RE MAKING FUN OF YOUR SUBJECTS. This is not a copyright issue, point blank.

I don't think I'm letting Virgin off the hook. Virgin is a telecommunication company, which automatically makes it a scuz bucket, low life, slime. I didn't think that needed to be said; nor that the company isn't going to end up paying for this little journey into CC land.

I am disappointed in Creative Commons because I think it's important for the organization to point out events like this, as both warning and education. Never does. Never publishes anything but la la la, we're living in a wonderful world full of puppies and kittens, la la la.

Yeah, I just think your argument is a little bit feisty for feisty's sake. It seems a lot like somebody saying "This CC license said I could use this photo, but it didn't put me on notice that it's illegal to show naked photos in public." Sort of ridiculous.

And although it may not be specific enough to mention model release forms, there is a relevant FAQ item on CC's site:

http://wiki.creativecommons.org/FAQ#Does_using_a_Creative_Commons-licensed_work_give_me_all_the_rights_I_need.3F

In other words, you still need to make sure you're not breaking other laws even when the CC license assures you that you're not breaking copyright law.

It doesn't matter Martin. What matters is that when events of this nature occur, this would be a terrific opportunity for the CC sites to discuss the issue and the ramifications. That's not asking people to not use the licenses. It's making people aware of what can happen, and potentially even what they can do about it.

I'm not sure that Virgin is the one who can be held accountable on this. I think this could get very messy if it went to court. I really wouldn't be surprised to have this rebound on the photographer who put a commercial license on the thing, at least partially.

Now, as to your ridiculous — just because you don't agree with me, you say I'm bringing this up just to bring this up. Now that is typical of these discussions about CC. Can't handle criticism, can't handle concerns, can't even deal with facts in the face.

I have been critical of the CC licenses from day one, for just this reason. The CC folks won't discuss criticism of these licenses.

Pure la la la land.

Who are "CC folks?" I'm a lawyer and your argument is rather silly.

So, I'm a developer, and I think you're an ass.

If you think my argument is silly, why do you continue coming back? After all, you're a lawyer, you charge by the hour for giving an opinion.

My argument is one and only one: that this came about, directly or indirectly, because of the CC licenses. It's worth mentioning at the CC site, and using it to initiate a discussion about the ramifications of allowing one's work to be used commercially.

That's it. That's the only 'argument' I have. If you want to think it's silly, fine. Your point has been made, but you can play the lawyer card all you want, it's not going to change my opinion on this one little bit.

I feel like there's some dancing around a key point that Charles Miller brought out in his posting (the one that triggered all this), and that is specifically discussed in the FAQ at the link that Martin provided:

The Creative Commons license used to require (in version 1.0) that the "Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder". This warranty was removed in version 2.0 and now "all of the licenses contain a disclaimer of warranties, so there is no assurance whatsoever that the licensor has all the necessary rights to permit reuse of the licensed work".

CC says that they made this change because they "concluded that… warranties and indemnities are best determined separately by private bargain". That would seem to be in direct contradiction to CC's statement that "you can use the work without having to seek out the individual creator or licensor and ask for permission—provided you use the work in the manner permitted by the Creative Commons license." Clearly, you cannot safely use the work without performing due diligence, and contacting the licensor would certainly be the first step.

The modern Creative Commons license seems to me to be the IP analogue of the Quit Claim Deed. Can I interest you in buying the Brooklyn Bridge?

First, Martin, apologies for the 'ass'. However, if you have specific arguments to make, make them, don't just say, "You're being silly". That's incredibly condescending, and doesn't benefit anyone.

Doug, that is a good point, and Charle's original post I linked made some very pertinent points, that being one.

I wanted to link, in my comments, a couple of sites on model releases, such as Dan Heller's site and from the American Society of Media Photographers. The issue of who is responsible for the releases isn't as clear cut as one would think. It comes back to what the photographer implies to the user or publisher of the work.

This, then, goes back to Charles post, and his reference to the variation between the two versions of license. And also to the whole point of CC, which was supposed to ensure that people would not have to contact the photographer for using the work.

When you hold rights reserved, and a company like Virgin uses the work, there's no doubt about who is at fault, and that the photographer is not responsible in any way. But when you say, "You can use this photograph commercially, and since this is a CC licensed work, you don't have to contact me to ask for permission…"

I guess I will have to continue being silly.

Elaine, you claim that CC never acknowledges there are ongoing issues, but don't they keep improving the licences with new versions? they just released the
version 3.0 licences designed to "improve the clarity of the terms of the licenses and to address some concerns" (source). of course the site also has a list of things to think about before CC licensing.

it's advocates also strongly maintain it is not right for every situtation. i think give CC a break. they are the best and most well known alternative to "all rights reseved" at the moment. and they are the first licensing model i know of that have emphasised the need to include metadata to ensure the integrity of the licensing model (embedding attribution etc into digital products).

of course there is always more information that could be provided. but there is ALWAYS going to be more information that could be provided. perhaps it is time for other cultural bodies such as collecting societies to stand up and provide some of this in stead of fobbing of this kind of stuff on a bunch of lawyers.

and on another note - if you care to read the text of the CC licences, it specifically states that it does not warrant that other legal matters like defamation (and by implication model clearances) are covered. Virgin's lawyers should have noticed this.

There are so many potentially reuses, and legal issues that could arise from these re-uses, that you can't expect every creator to take on that burden. Not even a lawyer can anticipate every possible scenario. It's up to users to exercise reasonable caution as well - like Elaine did.

Elliott, I think you meant me not Elaine with your first comment.

The CC group has provided 'alternatives' to copyright and fair use (and public domain) with a set of licenses. Such efforts come with a great deal of responsibility, in particular to ensure people are educated, or at least informed, that there are other and related issues, and that there are consequences to their use of such licenses.

Any photographer who takes pictures of people and private buildings should not put a commercial use CC on their photos, unless they have written permission from the subjects (or the owners of the private property) allowing them to do so.

They should ensure there are no commercial logos in the work.

They should examine such to ensure that they haven't included other copyrighted material in the photo.

They should be aware that in places such as Missouri Botanical Gardens, museums, and such that taking pictures for personal or editorial use is permitted, while for commercial use is not.

Professional photographers know all of this because they have become educated on such, and they educate each other on these issues. Amateurs are typically protected because they don't sell their work and because their works are automatically protected against commercial use through the copyright laws.

People at Flickr who just toss this CC license on their work most likely do not know, or even think of any of these issues. In fact, many didn't even seem to realize that commercial meant the work could be used for ads.

It's like giving people loaded guns and not telling them how to use them safely.

Rather than encouraging people to be aware of the potential problems associated with the 'free for commercial use' problem, it would seem that many think the non-commercial should be completely eliminated from the licenses. No wonder the group won't even mention the Virgin Mobile happenings at the site.

When people in the email list have mentioned the need to educate those using the license more, they've been warned by the legal folks attached to the group about the risks inherent with 'giving legal advice' when not a lawyer. What utter bull — I linked to two groups discussing copyright and model releases, and the opinions expressed were not those of lawyers.

Under the existing copyright law, if I post a photo and someone wants to print or use, they contact me for permission. I either give it or not. The whole point of CC was supposedly not to inhibit free use of a work, by making it so people didn't have to contact the person. Yet here we have with a CC commercial license, a suggestion that people should contact the photograph owner to clarify the use of such photo. What the heck good, then, is the license?

The purpose of the Creative Commons is to encourage reuse by reducing barriers, not eliminating them entirely. It's a rejection of the notion that the proper state of creative work is to be locked away forever under copyright and aggressively protected from derivative use. Millions of works are available for reuse today because of Creative Commons.

The group clearly needs to educate people better about the licenses. But overall, I regard this licensing as a great response to the Eldred decision and the perpetual extension of copyright.

Any photographer who takes pictures of people and private buildings should not put a commercial use CC on their photos, unless they have written permission from the subjects (or the owners of the private property) allowing them to do so.

They should ensure there are no commercial logos in the work.

They should examine such to ensure that they haven't included other copyrighted material in the photo.

They should be aware that in places such as Missouri Botanical Gardens, museums, and such that taking pictures for personal or editorial use is permitted, while for commercial use is not.

Professional photographers know all of this because they have become educated on such, and they educate each other on these issues.

I think that it ought to be noted that the boundaries of what is verboten commercial use have been expanding ridiculously in recent years. The CC org never says this explicitly, but in part they are playing the role of agent provocateur in order to expose the contradictions and weaknesses of the dominant copyright all-rights-reserved-by-default regime (and that is just the narrow regime of copyright, out of the all encompassing 'intellectual property' universe).

To be fair, the real underlying problem here is the fact that it is extremely difficult (perhaps impossible) to craft a perfect generic alternative licensing regime that covers all of the types of works that fall under copyright. The devil is always in the details, because authorship and performance of photos, music, and text are not treated the same, and do not represent the same sets of expectations, in many different ways.

I think there really needs to be a separate (but compatible) family of CC licenses for each media type in order to handle the various special cases, but exposing those special cases (especially the largely fuzzy and unstated social norms around 'derivative work' boundaries when you combine works of different types) will take a long time and a critical mass of material released with some intent of sharing.

Now that the critical mass is there (at least for photos), we will see many more of these problems exposed, as a result of both critical use and commercial use.

When the CC project started, no-one could have predicted with any confidence which media type would gain critical mass first, so expending effort on specializing the licenses would have been a premature optimization.

It now remains to be seen whether the CC org will rise to the challenges posed by critical mass and eventual ubiquity.

Rogers, my problem (and I think Shelley's, too) is that there is a big difference between a good idea—an alternative licensing that encourages no-fee reuse—and a good implementation of that idea.

I heartily applaud CC's goals. However, I think that the actual CC licenses, not to put too fine a point on it, suck.

You say, "Millions of works are available for reuse today because of Creative Commons." Well, not really. CC works are not available for reuse unless you do some due diligence to determine who holds all of the rights involved, which means contacting the supplier at the least. How on earth does this help???

"Oddly enough, I used a CC-licensed photo from Stewart Butterfield, of him and his mom when he was a little kid. With the license on that one, I could have just used it without saying a word, but that didn't seem right. We swapped some very pleasant flickr-mail, and he decided to change the license but gave me permission anyway. I wonder if it was a shock to him, realizing that one of his childhood photos could potentially be used as an ad to sell, in this case, Visa gift cards. It would weird me out, that's for sure!"

It's very disturbing that he changed the license after talking to you, as that implies that he didn't realize what the license meant until after he talked to you. And if Stewart Butterfield, of all people, is using licenses without realizing what they mean, then the whole situation is worse than I'd imagined, even when being pessimistic.

My dad is a professional photographer. He has been in the industry for 50 years. He likes to point out that only 1% of his photos have ever sold and only .1% made real money. He thinks a lot people give away photos free because the 99% of the photos that never sell leave people feeling that the other 1% won't sell either. He has a show that he's taken on the road lately to tour camera clubs and make people aware of the commercial value of their work. He has a shot of a butterfly, taken in 1971, that made $23,000 over the course of 55 sales. He has a shot of a balloon that made $17,000, over the course of several dozen sales, and a couple decades. He has a fireworks shot, his best-seller, that made $33,000 over the course of almost 100 sales.

Obviously, his commercial self-interest causes him to worry about the numbers of people giving away photos for free. But he thinks a portion of people's "giving stuff away for free" arises from ignorance rather than idealism. In his opinion, at least some people might reconsider what they are doing if they realized the commercial potential of their work.

Lawrence, that is an interesting story about your Dad. And an interesting perspective. Has he written on this anywhere?

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