What To Do About CC License Violations? 437
An anonymous reader writes "In the past, I've seen my pictures used by big commercial companies despite the Creative Commons license that clearly limits them to non-commercial use. I just let it slide because a friend who's a lawyer says that all I can do is sue. They've ignored emails and comments. Today, I saw two other examples that show this is pretty rampant. These big commercial corporations are some of the most tech savvy publications around, but they just grabbed the image. One, BoingBoing, even reprinted the 'non-commercial' clause, warning others to stay away. But they've got their ads from Cheerios, HP and Mazda running alongside. Does anyone care that we've gone to all this trouble to create new, more flexible licenses? Does it even matter when very smart people just flip the bird to the license? Is the only alternative to sue? I wouldn't mind asking for $150k and settling for $1 for each copy made, but that seems a bit crazy. I hate to type out DMCA notices but their attitude is that only uncool people complain about this and I should be happy about the publicity. Then they can be happy about not sharing their ad revenue with artists or photographers. What can I do?" Update: 08/30 18:39 GMT by T : (Very belated; mea culpa.) Cory Doctorow writes: "The anonymous submitter is not the creator of the photo. The creator of
that photo is Jennifer Trant, a friend and colleague of mine who has no
trouble with my use of her photo. I have just gotten off the phone with
her and confirmed that she did not submit the story and also that she is
happy to have this photo on Boing Boing." The photo has since been added back to BoingBoing.
Very annoying (Score:2, Interesting)
I've had similar things happen with my own works that I've licensed under either the CC or similar media-suited licenses. It's very annoying. Even worse, it's always the big companies that could actually afford a to pay for whatever rights necessary that dont, in my experience. Very sloppy business practices...
But what can you do? You have a choice: protect your rights (while you still have them!), ot let corporations take the piss. Pretty simple, really.
Reprint It (Score:4, Interesting)
Regarding the one vendor telling people to stay away from YOUR image, put up a copy on a website, and then taunt them with it. Make them sue you. Your response in Court should be most interesting. :-)
put logos on everything (Score:4, Interesting)
Send them an invoice (Score:3, Interesting)
Is BoingBoing's use "Commercial"? (Score:3, Interesting)
It's up for debate as to whether or not BoingBoing is receiving "monetary compensation" for "exchanging" your work. Yes, it's next to ads, which they're being paid to display. But they're not being paid to display your image. At least, not directly.
Boing Boing (Score:3, Interesting)
Boing Boing releases all of their stuff under CC NC SA, so you may not have a case there. IANAL, but that's probably the last one you'd want to take on over other companies.
Forgive my ignorance... (Score:2, Interesting)
Re:Reprint It (Score:5, Interesting)
I am not sure that I understand. Boingboing used his image in a blog post. He is upset because there is an advertisement next to it? Or his he just mad because Boingboing is using the image in the first place?
To me, if a corporation wants to use the image IN an advertisement, then it is time to get upset. Until then, no big deal. If I had some CC-licensed images, I would feel honored if Boingboing used one. Then again, I am a little bit of a Boingboing fan.
You'd think ... (Score:3, Interesting)
Watermark your stuff (Score:2, Interesting)
Don't sue. Just press charges. (Score:2, Interesting)
Copyright infringement is, you know, an actual crime with legal penalties above and beyond what might be collected by someone who sues them for it.
Press charges against them for infringing on your copyright. You can trivially show that they did not have permission to copy your work by pointing out the self-evident fact that they had not adhered to the limitations you imposed on people to retain any permission to copy the work.
Re:Reprint It (Score:3, Interesting)
I think he's thinking that BoingBoing is getting money with their posts (through advertisement), hence it's a commercial activity - and it makes sense. The BoingBoing poster obviously doesn't see their activities as commercial, which is odd.
Re:CC Non-commercial license (Score:3, Interesting)
Do you really think these particular images were chosen over others to generate revenue? Or do they just happen to be images picked to go along with the theme of the articles (which is indeed the case)? You guys are confusing the fact that these images happen to be placed on sites that earn revenue with the images themselves being responsible for said revenue.
I don't think you have a case (Score:1, Interesting)
I scanned the text of the CC license in question for mentions of what "non-commercial" actually means, and this looks to be it:
I doubt using an image for editorial illustration can be said to be "primarily intended for commercial advantage". It sounds to me like the only thing this license really disallows is using your image in advertising. (IANAL)
Re:Why ask? (Score:1, Interesting)
And don't forget all the semantic games about how when infringing copyrights by downloading movies, music, software, books, etc for free it isn't "stealing" but if you even so much as use one line of GPL code in a proprietary application (inadvertent or otherwise) and you are burned at the stake as a "code thief". Slashdot hypocrisy is so deliciously hilarious.
Re:If you really care, sue (Score:3, Interesting)
Were you being facetious? The EFF are the lawyers - when you make a donation to them, you're helping to pay for litigation for people who may not otherwise be able to afford lawyers. Check out some of the legal battles they've won here [eff.org], and consider making a donation.
Re:If you really care, sue (Score:4, Interesting)
Yes, of course the EFF would help you sue Cory Doctorow, who is a former EFF staff member, recipient of EFF's 2007 Pioneer Award, and a current EFF fellow.
How does he want his images to be reused? (Score:1, Interesting)
My question goes more to the purpose/scope of the non-commercial CC license. What if someone puts it on their Photobucket account to share it (photobucket has ads)? What if someone posts it on a forum with an ad? The avenues of distribution where someone does not profit from the context are very narrow. I only raise the point because they (BB) are not making money off of the photo; ie: I doubt anyone went to BoingBoing that day to see that entirely unremarkable picture, they went there for the article, and merely saw the picture. Streisand Effect aside (Poster: good job on that, by the way), the picture there had no more draw than the ads themselves. Second issue: BoingBoing attributes the image to this guy's flickr account, and links to it. Seems like Quid Pro Quo.
Wired, on the other hand, certainly drew some people in with the photo. It's an amusing photo and they should have to pay for it.
MAY be violating (Score:5, Interesting)
Here's the relevant definition (from CC ver. 3):
Is the use of the photo to illustrate a story "primarily intended for or directed toward commercial advantage"? My own blog has ads on it, but those ads have never paid me enough to even meet the expenses of hosting the blog. Would I be using the image for "commercial advantage" if I posted it on my blog?
Worse, the phrase "commercial use" has a fairly standard meaning in photography law, as the use of the image basically in an advertisement. Thus, when the National Enquirer runs a photo of some celebrity, that use is an "editorial" use rather than a "commercial" use; it illustrates the editorial story. They still have to pay the photographer ("non-commercial use" by itself is hardly enough to allow a copyright violation), but they don't have to pay the subjects of the photo anything... even though the whole point of running the photo is to sell more copies of the Enquirer, a for-profit organization. But if they wanted to use the very same photo in an ad for, say, a watch company advertising in the Enquirer, then that ad would be a "commercial use" of the photo, and they would have to have the permission of the subjects of the photo to use it for that purpose. Media companies are VERY familiar with that distinction, so if they see a "non-commercial use only" clause, then they will automatically assume that just means that you can't use it in an actual ad.
So when the CC non-commercial clause is used, does that mean "commercial" versus "editorial" as the law has defined those concepts in an important area of photography law? Or does it mean something entirely different? The definition should be MUCH more clear. As a lawyer, I wouldn't have a problem representing BoingBoing here, and I'm sure the vagueness of the clause would at the VERY least allow them to get off with only paying a nominal charge for the use of the images, and may very well result in them not having to pay a dime.
Go rant at Lawrence Lessig and the lawyers who drew up the Creative Commons license for not writing clearer license terms.
Re:Why ask? (Score:5, Interesting)
And really, the producers of the information want it to be expensive. They want their reward back for their work.
More than that, they want to be rewarded perpetually for work they did once, which is why it strikes so many people as basically unfair, or at least anomalous. If I pay you to put a new roof on my house, I pay you once for a few days' work, at until I need you to come back in fifteen or twenty years to do it again. Another roofer can do my neighbor's roof without having to pay you for having roofed my house first. And so it goes with most jobs: you get paid for the work you do. With information, you get paid for all time for having done some work at some point in the past.
Nice work if you can get it, I guess.
The system of artificial scarcity we call intellectual property rights was created because, unlike roofs, information is cheap and easy to duplicate, and without that artificial scarcity, creators of useful information would get paid so little that they'd find something less useful but more profitable to do. Unfortunately, it's been carried to such an extreme -- in large part because of the transferability of those privileges -- that entire industries now make billions of work they haven't done at all, while the actual creators, by and large, still get paid jack. What has changed with recent technological advances isn't so much the cost of duplicating data, which was already cheap as dirt, but the emergence of the possibility of eliminating the distribution cartels that screw the creators and gouge the consumers.
Aside from a few exceptional cases, that possibility remains theoretical. Instead of information wanting to be free, the dominant force at work is that people want all they can get, and those who already have a bunch are in a good position to take more, with minimal recompense, from the rest of us. Which is nothing new.
Re:Send them an invoice (Score:3, Interesting)
Re:Why ask? (Score:5, Interesting)
One slight mistake, Generally speaking people that are creating content believe and follow the licenses. The lechers that contribute little to nothing to society and just expect to be given everything for free that are the ones usually pirating. However you have a solid point, if you pirate material you basically have no ground to say this guy should get anything for his works.
Re:Why ask? (Score:3, Interesting)
I'm struck by the idea that the USA was founded on the supposition that we were born with "property rights." One explanation of this is that "Life" assumes we own ourselves, "Liberty" assumes we can use what we own (ourselves) to do what we want AS LONG AS WE DON'T IMPINGE ON THE RIGHTS OF OTHERS TO DO THE SAME, and "Pursuit of happiness" is construed as the right to own (and dispose of) the products of our life AS LONG AS WE DON'T IMPINGE ON THE RIGHTS OF OTHERS TO DO THE SAME.
Producing information (the products of a person's creativity or labor) is different from revealing information. The products of a person's labor should be rewarded as they see fit, while the revealing of information (scientific fact, algorithm, etc..) should be free.
OK, there are Gray areas, but there is not a Gray area in this respect: The OP created the images. He should be rewarded as he sees fit even if he chooses no reward. Rights not enforced are equivalent to no rights at all. He can whine, or he can get them enforced.
Re:BB removed it (Score:3, Interesting)
Re:Send them a bill (Score:3, Interesting)
(I recall reading stories about cartoonist Ken Weiner, who, also out of principle, used this technique with deadbeat freelance clients, with good effect. His alternate method was to visit their offices during business hours unannounced - brandishing a large hammer.)
This may work out though. A friend of mine posted her own concert photos on her web site, one of which showed up published in a magazine, without her permission. She wrote the publishers and asked for payment. They paid.
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Legal misunderstandings? (Score:4, Interesting)
I am not a lawyer, but my understanding of US copyright law differs from yours...
The bad news, about that $150,000: you're not going to get it. Statutory damages are only awardable if your work was registered with the Copyright Office prior to the infringement. Without registration, you're eligible for actual damages, basically just how much money the infringer made off of your work. Unless Wired regularly pays $1 per copy per image (they don't) then you're not going to get that much either.
The good news, about those DMCA notices: you can skip them and go straight to a lawsuit if you want. DMCA notices are for the infringer's service provider; their ISP, or their web host, or the blog they commented on, or whatever. The service provider gets a chance to pass the notice on, then cut off service for the infringed work if the notice is unchallenged, without becoming liable for infringement themselves. But Wired isn't a service provider for its own employees. If they're copying your work without permission, they're already guilty, no backsies.
Re:Why ask? (Score:3, Interesting)
if you pirate material you basically have no ground to say this guy should get anything for his works.
No, that's bullshit. If you are a copyright non-believer then you don't have the right to complain when others don't believe in your own copyrights. But you still have every right to point out the hypocrisy of a copyright believer committing copyright infringement . It isn't your personal belief in copyright that matters, what matters is your ability to recognize hypocrisy. As the saying goes - it doesn't take a baker to know when the bread is stale.
Re:If you really care, sue (Score:1, Interesting)
Cory probably did it himself. BoingBoing doesn't have a staff of interns finding pictures for Cory. He does it himself and he was probably the one who ignored the license. Willfully ignored the license too I'm guessing.