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Creative Commons Is Not Public Domain

The views expressed are those of the author and are not necessarily those of Scientific American.


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I do not Creative Commons license my images.

The reason is simple: I am evil consumers of Creative Commons licenses do not understand them. In particular, they seem to miss one key bit of information:

Creative Commons licences are contracts.

What do I mean by that? Creative Commons makes agreements. It is not law. It is not an alternate legal framework for intellectual property. In fact, CC-licensed content is subject to the same copyright laws that exist for all other creative properties. Rather, the novelty and genius of Creative Commons is in its creation of a widespread, standardized set of contracts between content creators and content consumers so that both abide by existing copyright infrastructure.

There’s a simpler metaphor for understanding this concept, though. Creative Commons is the McDonald’s of intellectual property paperwork.

McDonald’s is everywhere. Every city, every town, nearly every country. Everyone knows a Big Mac. Everyone knows to order a meal combo with a simple number. Everyone knows whether they want fries with that. The franchise restaurant is a stunningly successful business model, and it works because it reuses the same simple, easily recognizable menu no matter where it occurs.

Creative Commons does the same thing, except with legal agreements for intellectual property instead of burgers. It’s really quite elegant, and I’d use it myself if not for the catch. Creative Commons only functions properly when both content creators and content users have the same understanding of the simplified CC contract. In my experience, content users fail at this more often than not. They arrive at the drive-thru knowing what to order, so to speak, but they miss the pay window.

As way of an example, and the reason I am ranting about Creative Commons this morning, is WIRED’s science blog. The lead article on ant behavior is illustrated by two ant photos (this and this).

What is the problem? Well, the obvious issue is that the second image is credited to Wikimedia instead of Antweb, and Wikimedia clearly states any use of that image is to be accompanied by a credit and a link back to Antweb. WIRED does neither.

But a flawed credit line in this one case could be more a typo than representative of a serious problem. More troubling is the apparent ignorance of the Creative Commons license terms for the top image. Here are the conditions stated for that image, which bears a CC Attribution-NonCommercial-NoDerivs 2.0 Generic license.

  • Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
  • Noncommercial — You may not use this work for commercial purposes.
  • No Derivative Works — You may not alter, transform, or build upon this work.

WIRED is a private for-profit entity. Danielle Venton, the author, is a paid blogger. Both earn money from the site’s advertising revenue, which, as you can see from the screen capture, forms a substantial presence on the site. The commercial nature of this context should be uncontroversial. The blogger, to remain compliant with U.S. copyright law, needs to obtain permission for use that goes beyond the stated non-commercial CC license.

Now, maybe the blogger wrote to photographer “s.alt” and obtained commercial-use permission. I doubt it, however, considering the sloppy treatment of the credit behind the second image. It may also be that the image creator would grant such permission. Or it could be that the photographer feels entitled to some of the cash that his or her image is helping WIRED earn. Who knows? The only way to ensure that the content creator’s rights are respected is a mutually-agreed legal contract for commercial use.

To get a sense of how large this copyright problem may be for WIRED, I combed the ten most recent posts using Creative Commons images for commercial license terms. Here’s the breakdown:

80% of Creative Commons-licensed images recently appearing at WIRED Science may violate CC license terms

Again, I do not know that the bloggers didn’t write the photographers to obtain commercial-use permission. But I doubt it. My judgement is borne from personal experience. I see my images popping up on commercial blogs all the time, and fewer than one in ten asks my permission.

I don’t mean to single out WIRED, either. I’m only picking on them for the recent ant example. In reality, many commercial blog networks show rampant disregard for the rights of artists, photographers, and musicians. They may not have been caught, yet, but they could incur substantial legal liability when a copyright owner decides to seek damages. After all, using an image beyond the bounds of the license is breaking the law.

The bottom line is this: if someone else’s creative work is helping you make money, you have a moral and a legal obligation to reach an agreement with that person about the terms of use. Creative Commons is supposed to make this easier, but it only works if the content consumers treat CC as a contract and not a blanket license for free use. Creative Commons is not public domain.

Alex Wild About the Author: Alex Wild is an Illinois-based entomologist who studies the evolutionary history of ants. In 2003 he founded a photography business as an aesthetic complement to his scientific work, and his natural history photographs appear in numerous museums, books, and media outlets. Follow on Twitter @myrmecos.

The views expressed are those of the author and are not necessarily those of Scientific American.

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Comments 22 Comments

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  1. 1. Glendon Mellow 2:29 pm 08/28/2011

    Well said and excellent, Alex!

    It certainly isn’t just Wired. I made some similar observations back in October 2010 (Why don’t more science bloggers cite their images? and Glimpse at image credits on science blogs.

    It baffles me how science bloggers who meticulously cite the papers in extensive bibliographies at the bottom of their posts completely miss the point on images.

    I love Creative Commons though, not for how it’s ignored, but for how it helps. Expect a rebuttal post! :-)

    Link to this
  2. 2. Alex Wild in reply to Alex Wild 5:27 pm 08/28/2011

    Thanks for your comment, Glendon- I’d love to read your rebuttal!

    My problem is not with CC so much as the way it is commonly misinterpreted. Example:

    “Non-copyright images on Flickr come under a different kind of license called Creative Commons.”

    (source: http://www.skelliewag.org/a-complete-guide-to-finding-and-using-incredible-flickr-images-162.htm)

    Too many people actually think Creative Commons images aren’t copyrighted. That’s a recipe for lawsuits.

    Link to this
  3. 3. Malev 5:52 pm 08/28/2011

    It sounds to me like CC makes more problems than it solves. If the blogger is not making revenue directly from the photos (i.e. selling and/or using them in some marketing ploy) then has it been violated? Are teachers going to be sued because they used an image in a powerpoint presentation and because they “technically” got paid to do so?

    Link to this
  4. 4. snofoam 9:39 pm 08/28/2011

    I don’t really understand how Creative Commons is part of the problem here. I also don’t see how the McDonald’s comparison is apt. Creative Commons isn’t a franchise model. It’s not even a business. They just created copyright licenses that people can use for free. I think this post treats them unfairly, and I think comparing them to McDonald’s is kind of a cheap way of making them sound bad, insofar as many people think of McDonald’s as an evil entity.

    I do agree that many people don’t understand CC licenses, but also many companies are happy to steal images if they think they can get away with it. This sucks. Conveniently “misunderstanding” CC licensing is no excuse. Implicating CC as part of the problem merely diverts attention from the real problem.

    Link to this
  5. 5. kclancy 11:09 pm 08/28/2011

    Great post, Alex. I’m glad you shared your perspective here. We should not be in the business of using the work of others for commercial gain, when images are specifically identified as not for commercial gain. And I look forward to hearing more from Glendon :) .

    Link to this
  6. 6. Alex Wild 11:18 pm 08/28/2011

    Snofoam- I hope I am not being misread. I am not implicating Creative Commons itself but some of its users.

    Creative Commons is not a franchise, but it works for the same underlying reasons a franchise succeeds: widespread recognition of a simple uniform product. The closest analogy I could think of in explaining the benefits of CC is fast food. I did not intend to level a value judgement.

    Link to this
  7. 7. Jambe 1:32 am 08/29/2011

    It does seem that many writers are ignorant of CC licensing terms. Indeed, it seems that many are under the mistaken belief that all CC licenses are either CC BY or BY-SA. I suppose this can be seen as a failing of the CC as a whole.

    So, the practical suggestion is: if you’re feeling magnanimous and are not bound an employer’s contract, use CC BY-SA (or go straight to the public domain if you’re feeling especially selfless). Releasing copyleft/public domain images is a commendable act which increases the richness of our culture and blah blah blah, it’s really great.

    If on the other hand an image is personally significant to you, you should consider first whether it is worth uploading to the internet at all (if the internet has taught anyone anything, it’s that things thereupon are quickly found and appropriated regardless of the creator’s intent). If it’s necessary to have such an image on the internet you should control its possible use by limiting its resolution and/or applying large destructive (highly opaque) watermarks. Doing otherwise is asking for trouble!

    I abhor the nonsensically punitive and arbitrary quagmire that is American copyright and patent law. That the systems are so perversely corporation-bent is saddening. That’s a tangential discussion, but monetary evaluation of imagery always gets my dander up because of how thoroughly exploitative and creativity-stifling such endeavors often are in our almost hatefully possessions-oriented society.

    Don’t get me wrong — I’m an atheist materialist myself, but I think greed and monies-obsession can run way out of hand and end up damaging society.

    Provocative article, sir.

    Link to this
  8. 8. Jerzy New 9:28 am 08/29/2011

    “I abhor the nonsensically punitive and arbitrary quagmire that is American copyright and patent law. ”

    Me too. Just to cool down heads: in most so-called commercial uses, value of image is very low. So if you should seek any permission or payment, it is not worth using the photo at all.

    I made statistic presentations, which could be interestingly illustrated with cartoons from XKCD and pictures from Harry Potter (can we statistically decide, that Hagrid is too big for a normal man?).

    After thinking, I dropped both from the presentation – because looking for any use permission, approval etc. was more mess than its worth. So presentations were more bland – I used royalty free picture of lab rat – and copyright law was honored. And authors got nothing, anyway.

    Link to this
  9. 9. Alex Wild in reply to Alex Wild 10:28 am 08/29/2011

    You know what stifles my creativity?

    Working a non-photography job to pay the bills. A great many of the images people complain about having to pay for only exist because users compensate the artists, thereby freeing them to create more.

    Fortunately, you’ve discovered the right thing to do: if you can’t be bothered to ask for free or reduced fees, don’t use the image.

    Link to this
  10. 10. snofoam 12:45 pm 08/29/2011

    I guess my main point is that stealing is easy and pervasive, while protecting one’s work is hard and probably not financially efficient in most cases. I think that this is true regardless of the license one applies to one’s images. CC licenses, in my understanding, exist primarily to facilitate sharing and collaboration in ways that are approved by the owner of the work. I think this is a good idea and it is unfair to implicate CC as a facilitator of prohibited use. Anyone interested in using someone else’s images has the moral and legal responsibility to do so based on the license used by the owner.

    I think probably there are many people who don’t understand that they can’t just use whatever images from the web they want, there are many people who know that it’s wrong but do it because they can, and there are a few people who are genuinely confused by CC licensing.

    The problem of misuse is a big shame, especially if it keeps people from posting scientifically useful images online. The world will be a better place when you can find images of every species of animal online, and we’re far from there.

    In theory, microstock sites could help a lot in facilitating appropriate use and compensation, but I don’t think they are or will be geared towards things like photos of hundreds of thousands of invertebrate species which would rarely generate sales. I think the ideal situation would be a massive image database with taxa managed by experts for scientific purposes that also doubles as a stock photo site to generate revenue for the project and the contributors. I don’t think such a thing would actually be a money-maker, but I think it would be a great resource to have. (And, of course, this ideal system would allow contributors to manage noncommercial rights via CC licensing.)

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  11. 11. snofoam 1:12 pm 08/29/2011

    I guess another possibility, which is more general in scope, would be for Google (who are the only ones I think would be able to do this) to create a photo sharing and microstock site that also monitors the web for usage of users’ images. Users could be notified when matching images are found online and would have an easy mechanism for notifying infringing parties so they can pay or stop using the images. If such a system were widely adopted, it would probably give current abusers a strong incentive to license images legitimately from the start. I would suppose even for Google such a system is at least a few years from being feasible, but I don’t see why it couldn’t exist at some point in the future.

    Link to this
  12. 12. sshreeves 1:45 pm 08/29/2011

    Great post. As a librarian who is involved with copyright education, I struggle quite a bit with explaining Creative Commons licenses to students (and faculty for that matter). It doesn’t help when people who should know better talk about the Creative Commons as being somehow outside of copyright law or, as you point out, public domain. CC works within current copyright law; unfortunately, if you don’t have a basic understand of that, it can be difficult to understand the nuances of CC. What is a derivative work after all? What implications does the share alike license have? I love the Creative Commons and the possibilities it opens up, but it doesn’t eliminate the need for education and awareness raising about copyright in general.

    Link to this
  13. 13. kclancy 1:57 pm 08/29/2011

    Alex wrote: “You know what stifles my creativity?

    Working a non-photography job to pay the bills. A great many of the images people complain about having to pay for only exist because users compensate the artists, thereby freeing them to create more.”

    Exactly. And the more I get to know people who earn their living doing this job, the more sensitive I have become about fair use, copyright, and attribution.

    Link to this
  14. 14. diylibrarian 4:49 pm 08/29/2011

    Wired used one of my CC-NC photos without seeking permission. When I contacted them, the photo editor responded: “It is our understanding that under the Creative Commons licensing Wired.com
    is not considered commercial, but falls under editorial.” This understanding obviously didn’t come from reading the CC license, which doesn’t mention any “editorial” use.

    The New Yorker also used the same image without permission. When I contacted them, they didn’t even bother to respond.

    I’m not a photographer and am not looking for money; I simply didn’t want my photo used in a commercial context without my permission.

    More details and a link to a blogger who has decided to abandon the CC-NC license (but not CC): http://diylibrarian.org/archive/2011/07/24/what-is-a-commercial-use/

    Link to this
  15. 15. Alex Wild 8:37 pm 08/29/2011

    diylibrarian- A lawyer would love your case, as unless WIRED’s story was explicitly about your photograph I think they are clearly wrong in their reading of copyright law.

    By “Editorial” WIRED is trying to make a Fair Use argument, which means Creative Commons is irrelevant anyway. My guess is they are throwing bullshit at you and don’t know what they are doing. Editorial use requires that the accompanying story be explicitly about the content of the story (e.g., the story is an editorial on the photo).

    In any case, the problem still isn’t with CC but with people who see the CC label and assume they can get away with free, for-profit use of the image.

    Link to this
  16. 16. user5454 11:28 pm 08/29/2011

    I just skimmed the above, so maybe someone already brought up this point, but can’t all this be fixed by having a license page that says “All images CC-BY-NC. HEY YOU! Website that makes money off advertising! You’re a commercial entity! You have to buy a separate license!”

    That seems like it gets the point across just fine without throwing away any of the legal robustness of a CC license.

    Link to this
  17. 17. Jambe 9:24 am 08/30/2011

    “You know what stifles my creativity?

    Working a non-photography job to pay the bills. A great many of the images people complain about having to pay for only exist because users compensate the artists, thereby freeing them to create more.”

    I explicitly exempted commercial and personally-significant photography earlier in my post. I’m not against either (I’ve been a working photographer at various points and I respect the trade) but copyright and patent law in this country is putrid regardless.

    If anything, I’m pro-pragmatism, pro-clarity, and pro-sharing.

    Link to this
  18. 18. Quinn the Eskimo 9:14 pm 08/31/2011

    Alex; Your content — your decision.

    End of discussion.

    Like Burger King; Have it your way.

    Link to this
  19. 19. diylibrarian 9:55 am 09/1/2011

    I completely agree that the problem is not with CC but with the disregard or misinterpretation by commercial entities. However, that disregard threatens CC, because if creators don’t trust it, they won’t use it.

    I would love for a lawyer to take this on. Wired.com habitually uses CC-NC photos to illustrate articles. How do you get to be a photo editor for a major publisher and not understand the basics of copyright and fair use?

    Link to this
  20. 20. lawhite 6:33 pm 09/28/2011

    Hi. Sorry I’m late on this. Since users (including me) don’t understand the CC licenses (which I don’t deny) can you point to a resource that gives examples of proper usage?

    Here’s the part I don’t get: “You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).”

    “Specified by the author or licensor”? Where do we find this specification? I have looked and looked and never found anything remotely resembling instructions from the author on what they want the attribution to say. It’s a bummer. It means I’m restricted to public domain stuff or stuff I make up myself. In the first case, the image is often just not quite right, and as for the second case–I try to be nicer to people.

    Link to this
  21. 21. deproduction 12:39 pm 04/3/2014

    I get your point, but disagree with your conclusion. Wired is guilty of copyright infringement, just as they would be if there were no CC license. Ignorance of the law is no defense. The presence of a CC license has no impact whatsoever on Wired’s use of the image, because all the CC license does is pre-authorize a very specific set of use. Wired’s use is not included in that specified pre-authorization, so they are infringing on copyright.

    My organization has released thousands of videos under CC licenses, and we are fully aware that most of the world doesn’t yet know what that means… We are aware that people may mistakenly think they have the right to use it for commercial purposes, but what is the alternative? Any time you put anything out there, you run that risk, and we’d prefer to indicate that noncommercial uses are pre-authorized. The alternative is a backwards approach via traditional copyright that prevents humanity from building on shared knowledge and expression.

    I’d rather risk my work being mis-used once or twice through a misunderstanding than continue with a traditional copyright approach that is clearly not in the best interests of the people. If you disagree, watch RIP: A Remix Manifesto, or any of the videos explaining CC at http://creativecommons.org/videos

    Link to this
  22. 22. deproduction 12:47 pm 04/3/2014

    The owner of that image can sue Wired, and there is precedent for the CC license being upheld. If you’re really concerned about this issue, then it’d be far better to encourage people to sue to protect their rights as creators than it would be to discourage people from using CC. CC is not the problem here.

    Link to this

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