Connecting Copyright

Virgin bites Creative Commons on the butt

Wayback Machine entry for post including comments.

Rogers Cadenhead finds an ad featuring Molly Holzschlag. About my post, he wrote:

Shelley Powers puts the blame for this squarely on Creative Commons for not educating users of its licenses. If you release photos for commercial reuse, but you don’t secure model releases from people they depict, you’re subjecting yourself — and those who use your work — to a thorough proctological workup by an intellectual property attorney.

Actually, I never said any of this. I said that this demonstrates that people are confused about the commercial license, because why on earth would a person add this CC license when they don’t have model releases? Or really want the photos used in ads?

Virgin Mobile’s part in this is less interesting, to me, than the issue of people putting a for-commercial CC license on a work that can’t possibly be used without a lot of additional work for commercial purposes. I didn’t once say that Virgin’s use of the photos wasn’t without its own problems.

Additionally, I’ve looked at many of the photos used in this campaign. Why on earth would the people use the commercial license with these items? None that I’ve seen are anything more than casual snapshots.

I’ve written–oh, a time or two–on my concerns regarding the Creative Commons licenses. I’ve stated that they’re confusing, that people are socially pressured and overly encouraged to use such without understanding the impact, and that we don’t really understand how these licenses work with existing laws.

Doug Pardee sent me an email giving me a heads up on an uproar at Flickr about photos Virgin Mobile is using for an ongoing campaign. Seems that Virgin Mobile used Flickr’s CC licensed photo search engine to find photos that allowed commercial use. The company then used such commercially, including a photo of an underage girl without her or her parents’ signed consent.

What’s interesting is the debate on this, as people who aren’t lawyers ask each other what does ‘commercial use’ mean, and when can a person publish a photo of an individual and so on. There is still a massive misunderstanding about the terms used in these licenses, and little done on the part of the CC promoters to do anything other then grunt, “CC, Good!”

Even now, with this discussion raging over at Flickr, another Flickr Forum item discusses the Wellcome Trust decision to release its image collection under CC, and then references those on Flickr who don’t do the same, saying, “Compare the Wellcome Trust’s attitude to that of some of the photographers here on Flickr who consider EVEN educational use of their photographs to be GRAND THEFT PHOTO.”

I would assume that the Wellcome Trust had lawyers who helped in the decision to release photos, and did so with a very clear understanding of the license, the implication, and what the CC licenses mean in regards to existing copyright laws. Obviously, the same cannot be said for many Flickr users, and social pressuring is only going to make matters worse.

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. To me, commercial use does not mean that your photos will be featured in a magazine. It means that your photos will be featured in an ad, and used to sell something. However, the only example of commercial use the CC organization provides is one where a person takes a photo and someone else prints it and sells the print. These are two completely different acts. Does this mean I’m wrong? If I am, then how does one classify the use of a photo in a commercial? As editorial use?

To me, editorial/educational (non-commercial) use means that your photos can be used in magazines or to accompany newspaper articles, or in classes or other forms of instruction. Such use also means that your photos can be used to promote organizations and attitudes you may despise, or even hate, but that’s besides the point.

This is what I understand about the CC, but I’m only a layman, and only have a layman’s view of all of this. Don’t look to the lawyers for advice, though; they’re so hemmed in by the rigid and restrictive rules of their profession, I’m surprised they can even identify themselves as lawyers, much less give a public opinion on anything.

Definitely don’t look for clarification or even discussion on these issues at the CC site. This is the ultimate ‘feel good’ organization, where the world is full of happy happy people creating happy happy works sharing with other happy happy people who would never abuse such generosity.

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