Should You Publish Your Photographs Under Creative Commons?

First, some background on Creative Commons (CC) licensing is in order. What is a CC license? Well, according to the CC website: "Our tools give everyone from individual creators to large companies and institutions a simple, standardized way to grant copyright permissions to their creative work. The Creative Commons licenses enable people to easily change their copyright terms from the default of 'all rights reserved' to 'some rights reserved.'" There are a number of CC licensing options from which you can choose which enable you to specify the manner in which you photographs can be used by others. For example, you can specify that your photographs can be used only if attributed to you or that people can use the photographs for non-commercial purposes only or that others can use your photographs only if the document into which they are to be incorporated shall be available under an identical CC license. Further details about CC licensing options can be found here. CC does not replace copyright – rather, it complements it – and is widely used by photo sharing websites such as Flickr which enable you to assign a CC license to your photographs once they are uploaded.

Okay, now that that’s been said, let's get back to the question: should you publish your photographs under a CC license? Well, if you’re a commercial photographer and usually sell your photographs for money, what’s the point? If somebody wishes to use one or more of your copyrighted photographs, they’re free to ask - and you’re free to either specify a price or, if you think that it’s appropriate to do so, permit the person to use the photograph at no cost. If you’re an amateur photographer and do not normally sell your photographs, the CC license is also somewhat redundant. Yeah, it may be nice to see somebody use your work and give an attribution, but the same can be achieved through normal copyright rules.

In short, Creative Commons licensing seems to make little sense in the world of photography.

Another question worth asking is: should you use CC licensed photos? Again, it’s not a straightforward answer. While it’s nice for people (including Bright Hub writers!) to be able to find photographs which they can use at no cost, there are some risks involved.

Firstly, it’s extremely easy – and possibly not uncommon – for people to either intentionally or unintentionally upload photographs for which they do not hold copyright to websites such as Flickr. Consequently, snagging an image and using it in your blog could, potentially, result in you receiving a completely unexpected email from the real copyright holder.

Secondly, CC licensing has been associated with a rather unpleasant scam. Here’s how the scam works:

1. Somebody registers their photographs with the U.S Copyright Office.
2. They then make those photographs available under a CC license on a website such as Flickr.
3. The images are promoted so that people will pick up on them (Digg, Digg, Digg).
4. The CC license is revoked.
5. The scammer then threatens to sue anybody who has used the photographs for copyright infringement.

Ouch! Dan Heller has blogged in detail about this on a number of occasions and his posts generated this response from a lawyer:

“Your blog postings are right on target, and you've lead everyone up to the finale, but you just didn't finish. Put the pieces together now, and you'll see how this who CC thing can be used as a form of entrapment. We are in a serious pickle, and we can't find any legal way out of it that doesn't cost an arm and a leg... other than paying the guy off.”

The fact is that many people would find it extremely difficult to prove where they obtained the image and that it had been made available under a CC license. And that, of course, is exactly what the scammers are hoping for: a quick and easy payoff.

To sum up, in my opinion there is really no point in making your photographs available under a Creative Commons license (others may hold a contrary view, of course). And if you’re using CC licensed images, be sure to tread carefully and keep records.

Dan, the bloke mentioned above, sent me an email after reading this article and made some very valid points, which I thought important to include in this article (I’ve highlighted the important bits for easy reference):

“I read your article, and it's a good summary of the subject.

However, your conclusion should have had one more thing: if you're going to use a CC licensed image, you should still contact the person who claims to own it and have them confirm in an email that they own the image, and that you are entitled to use it under the CC terms. This verification is important, and email is acceptable by the courts. It removes the legal "pickle" that a publisher would be in if the image were actually stolen, or that the CC license might have been revoked. If a claim were made later, this email would be critical in avoiding complications.

Of course, since the entire purpose is to avoid legal complications, one should do it for _any_ photo that a publisher uses, irrespective of the CC. Therefore, the whole point of CC is actually lost.

The intention of CC is that images could be used without requiring contact between the owner and the user of works, but because the legal aspects of "rights" are such that all claims of infringement have to be defended by demonstrating consent between the parties, CC just doesn't work. That it's being used so much right now is a bubble waiting to burst. It's like the tech bubble in the 90s, or the real estate bubble we just suffered from now: sooner or later, the reality of the law is going to strike, and the illusion people have been working under with CC will be more apparent.

Of course, it won't result in a catastrophic economic meltdown... It may very well just fade away though. I suspect CC will be obviated by a more streamlined micro-payment system that will be as ubiquitous to all images online. It won't be hard to build an automated system that allows for the low-cost licensing of photos found anywhere on the net, giving assurances of usage permissions to the buyers, while also giving small amounts and photographers. This economic ecosystem will be safer and more reliable for publishers than CC, and photographers would rather get a check at the end of every month for their images, rather than nothing at all. (This, especially if it requires no more effort than it currently does to assign a CC attribution.)”

Thanks for the feedback and advice, Dan!