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More Commercial Creative Commons conundrums

In this case, it seems that a lot of people assume that licensing a photo for commercial use under Creative Commons is, in fact, warranting it as unconditionally appropriate for commercial use.

A few days back, I posted about the difficulty of distinguishing commercial from noncommercial usage with respect to the Creative Commons license.

There's an ongoing legal case that concerns another aspect of Creative Commons commerciality. As Josh Wolf describes the original story:

On April 21, 2007, during a church camp, Chang's counselor snapped a photo of her and uploaded it to his Flickr account. He published the photo under a CC-BY-2.0 license, which allows for commercial use of the photo without obtaining permission from the copyright owner.

In less than two months, the photo had been cropped and repurposed to promote Virgin Mobile in Australia.

Upon learning of the ad, Chang wrote on a Flickr page, "hey that's me! no joke. i think i'm being insulted...can you tell me where this was taken." Underneath Chang's comment, there is a note from the original photographer: "where was this? do you think virgin mobile will give me stuff?"

It's unclear whether Virgin coughed up any loot, but Chang's family has taken legal action against the company for not obtaining proper permission for the use of her likeness.

The basic legal problem here is that, although the photographer gave his permission for Virgin Mobile Australia (or anyone else) to use the photograph for commercial purposes (with attribution), that doesn't mean that all the rights were cleared to use the photo in an advertisement. A stock photo--which is essentially how Virgin Mobile Australia was using the image--typically requires model releases from any identifiable person. Releases may also be needed for photographed property under some circumstances. Identifiable trademarks and the like can also be an issue.

It seems a rather fundamental error on Virgin Mobile Australia's (and even more so their ad agency's part). I guess they just assumed that the Creative Commons photo was like an ordinary stock photo where someone had taken care of clearing all the rights.

But as Larry Lessig says--with the dropping of Creative Commons itself from the suit:

As I said when I announced the lawsuit here, the fact that the laws of the United States don't make us liable for the misuse in this context doesn't mean that we're not working extremely hard to make sure misuse doesn't happen. It is always a problem (even if not a legal problem) when someone doesn't understand what our licenses do, or how they work.

The intent of Creative Commons is that the photographer (I'll stick to photography here) can give his permission for commercial, or noncommercial, entities to use his or her work without compensation. It is not, however, intended to be a representation that all the commercial rights to use the photograph in any context have been cleared. In fact, with Creative Commons licenses that permit modification of the final work it's hard to see how it would even be possible to certify in advance that any possible use was permitted under all laws anywhere in the world. And even stock sites place a variety of restrictions on the final use.

This seemed a fairly obvious point to me. But as I read stories and comments in this case, it seems that a lot of people assume that licensing a photo for commercial use under Creative Commons is, in fact, warranting it as unconditionally appropriate for commercial use rather than merely giving a narrower set of permissions strictly from the photographer's perspective.