Giving Everything Away: Return to Creative Commons
Posted by Aaron on December 9th, 2007Back in June I wrote an article about the Creative Commons project, Creative Commons: Good Idea?, in which I advocated the use of their licenses for promotional purposes and how that approach ties in with socially-driven sites like Wikipedia and Flickr.
This month the debate over Creative Commons licenses in photography flared up once more, with Jim Goldstein declaring that he would never use CC licenses, and Brian Auer retorting that he had before and would most certainly continue to in the future. Underscoring the points made by both of these fine fellows was an interview I read with author Cory Doctorow about giving away free electronic versions of books that brought many relevant points into play.
I’m revisiting the topic here today, not simply to agree or disagree with anything Goldstein, Auer, or Doctorow said, but rather to paint a picture of why I think the Creative Commons plays a very valuable role in photography in today’s copy-and-paste culture and why you should be thinking very seriously about how it can help you.
Creative Commons?
If you haven’t heard of them, the Creative Commons is a group focused on developing new “rights management” tools for creators. Whether you’re an author, painter, musician, or photographer, Creative Commons has developed “licenses” to allow you to more easily define the prohibitions and concessions you desire to make regarding the use of your work by others.
Fundamentally, Creative Commons licenses were developed for creators who wish to allow uses of their work that typical “all rights reserved” declarations prohibit. If you never want anyone to use your work for anything without asking you, you probably don’t need the Creative Commons. You should probably also turn around and walk straight back through the last few decades because you would be ignoring everything that has changed since about 1980.
Read more about the Creative Commons and their goals on their website.
Copy-and-Paste Culture
Cory Doctorow put this so elegantly that I will use his words:
It’s the 21st century, there’s not going to be a year in which it’s harder to copy than this year; there’s not going to be a day in which it’s harder to copy than this day; from now on.1
Before I go further, I want to make it clear that I’m writing this opinion from the perspective of a fine art photographer. If your particular photographic enterprise is closer to stock or retail portraiture or industrial/commercial/product work, much of what I’m about to say will simply not apply to you. I want to give more than one perspective, but my opinion is very much formed from an artistic point of view.
Doctorow continues,
… if your business model and your aesthetic effect in your literature and your work is intended not to be copied, you’re fundamentally not making art for the 21st century.
Whatever industry you’re in, his statements are true. Consumers of our creations have historically fought for the ability (if not the right) to copy and redistribute everything we make. The legal entanglements of Sony’s Betamax format greatly publicized the push and pull between creators and consumers in 1984 when Sony was taken to court by Universal City Studios. Only the technologies have changed since then; people will always be excited about multimedia creations and desire to share them, remix them, and pass them around.
If you accept the proposition that it’s culturally and socially beneficial for creative works to be made (and as photographers, I could not imagine a world or a situation in which you wouldn’t), then you must also recognize some of the hurdles faced by creators wishing to build upon the works of their forebears.
I won’t go deep into detail; for those interested in reading a truly revealing look at the state of copyright law and how it affects culture and creativity, I highly recommend reading attorney and Stanford law professor Lawrence Lessig’s book, Free Culture.
So, if you accept all of that, and if you further accept Doctorow’s idea that people are going to make copies (no matter what you do) and that remixes and mash-ups are fundamentally good for culture (and even for you, personally), your only concern is how to maximize your recognition and profits gained from a creative work without strangling the life out of this copy-and-paste culture we live in.
Some Rights Reserved
What Creative Commons does, in essence, is formalize the concession of certain usage rights to creative works such that the rights yielded and the rights retained are drawn up in defensible legal mumbo-jumbo.
This allows a creator to say, for example, “You may use my work to create new, derived works, and you may distribute those as you see fit, provided that you credit me and that your work remains under the same usage rights as this one.” Some rights are reserved.
I made the image to the right within the “Mansfield Training Center,” an abandoned hospital for mentally retarded children located in Mansfield, Connecticut. It came to my attention almost a year ago that someone had linked to my gallery of images from that hospital within the Wikipedia article about Mansfield’s “sites of interest.” It turns out that I have one of the most “definitive” collections of photographs from that site from recent years.
I came to the decision that I would release one of my images from the collection under a Creative Commons license, which is required for all multimedia content on Wikipedia, so that it could be displayed alongside the article and increase my exposure as a local artist. I chose the Creative Commons Attribution ShareAlike license (I overlayed the logo and byline on this image for effect). This license permits derivative works so long as I am credited and the resulting work is released under the same license.
Has this gained me a landslide of website traffic from Wikipedia? Not really. I am of the mind that any amount of exposure is good for business and for your reputation. I believe that being cited in this article (the original citation was added by someone else during their research) increases my overall credibility. Yes, I do think it was worth it.
Giving It All Away
One of the popular arguments against the Creative Commons paraded about online is that these licenses may expressly permit uses you, as the creator, don’t agree with. One recent news item involves young Alison Chang whose picture was taken by a young man in her church group and placed on Flickr under a CC attribution license. The image was snagged and used in a billboard campaign by Virgin Mobile in Australia, which then sparked a legal claim and discussion about licensing of images on Flickr.
Here are some things you need to know:
- It’s always, always your responsibility as a creator to understand the full extent of the concessions granted by a license you release your work under. If you decide you want to use a Creative Commons license, you should actually read it. Not just the “human deed,” but the full text.
- If you don’t understand the license… Don’t use it!
- As Dan Heller has frequently advised in discussions about model releases (this relates specifically to the Alison Chang situation), it is the responsibility of the person or persons putting your work into use (e.g. the publisher) to secure model releases. If you did not get a release when you made the image and the publisher doesn’t ask, it is not your problem.
- If you place your work under a license that permits commercial use and the image is used commercially, you have no recourse. If you did not secure a model release for individuals pictured therein and they decide to sue the publisher… That’s none of your business!
It is always surprising to me how many people post their images on various sites and in online communities without understanding the terms and conditions. As an artist, it is your responsibility to protect your work from misappropriation and misuse, and that means reading the terms and conditions of any sites you post your work on.
When Flickr asks you what type of licensing structure you want to use for your photographs, choose wisely. If in doubt, select “all rights reserved.”
It is not the responsibility of the Creative Commons to make abundantly clear to you what each of their licenses will do. It is your responsibility to read and understand them before you put them to use. It is the same with any contract or agreement; ignorance is no excuse.
Conclusions?
I still believe that the judicious use of Creative Commons licenses can allow you to give back to the artistic community and to our global culture in a way that nothing else can. By selecting licenses carefully and releasing certain works through certain avenues, you can be assured promotional benefits as well as the satisfaction of having contributed to the world.
Using Creative Commons doesn’t mean you stop making money or stop getting credit.
Nice write-up on this semi-controversial topic. There did seem to be a bit of a flare-up in the discussion when Jim and I had posted our articles… but that’s a good thing. It gets people thinking about the issue at hand, and in our case (Jim and myself) we were able to provide two sides of a story to quite a few people.
As you’ve stated in this article, CC is not for everybody. Ultimately, it’s up to the photographer to choose and understand their licensing options as a creative artist.
Thanks for commenting, Brian. My main concern in this discussion is that Creative Commons seems to take a lot of criticism for outcomes that are actually the fault of photographers failing to practice due diligence.
For example, the Creative Commons organization is a listed defendant in the ongoing legal proceedings involving Alison Chang. I’m sorry, but I can’t see how anything that Virgin Mobile or the photographer in question did could be the responsibility of the Creative Commons!
I hope that as our digital culture matures, artists will realize that reading licenses and terms of service on the websites they participate in is just as important as reading and understanding freelance contracts or the other legal devices they’ve have had to fiddle with since the beginning.
Nice write up, but I do find this paragraph flawed.
Fundamentally, Creative Commons licenses were developed for creators who wish to allow uses of their work that typical “all rights reserved” declarations prohibit. If you never want anyone to use your work for anything without asking you, you probably don’t need the Creative Commons. You should probably also turn around and walk straight back through the last few decades because you would be ignoring everything that has changed since about 1980.
“All Rights Reserved” prohibits use with out permission. Content designated with an “All Rights Reserved” license can be used in the same fashion as content marked with a Creative Commons license as long as permission is granted beforehand. I’m not sure what the big deal is about this, but somehow “All Rights Reserved” and copyrights in general have been demonized as a byproduct of the fall out of P2P and music sharing disputes.
As for your last sentence I challenge you on this. What has fundamentally changed since the ’80’s that would make it a problem to use “All Rights Reserved” vs. Creative Commons? The fact that there is the Internet? Do bloggers cite articles any differently than they would in print? A hypertext link hardly justifies as broad a claim as you’re making? VHS, DVD, music, written word, photographs, etc… its all the same… the difference is format, means of delivery and for the sake of this discussion permission of use. In the end it comes down to the courtesy of permission of use. I’d hardly expect that if I left my keys in my car that I’d be ok with someone using it with out asking first. Car, bike, skateboard, plane, etc… its property and has an inherent value. The same is true of these other pieces of intellectual property. By all means it is with in your right to put a sign on your car and give people permission to use the car as long as they read the fine print. Car or Photos… when it comes to a license or agreement that Creative Commons outlines you’re right it is the property owners responsibility to know what they’re getting into and that was as much a part of my post as anything else, but… its a mistake to think that you’ll not be impacted by what happens downstream. Even Creative Commons had to burn time and money to get themselves out of being included in the lawsuit you mentioned. If you’re a small time photographer you’re likely not going to have the same resources as Creative Commons.
The point… when using Creative Commons or any license a photographer needs to be well educated and weigh the pros and cons. Much of Intellectual Property law in relation to Internet use is still being defined and challenged in our courts. That has to be factored in to what you choose to do with your photo licenses.
Thanks for sharing your reactions, Jim, I’m glad that my article was interesting enough to warrant replies from both of its primary sources!
I suppose I should provide some clarification for the first paragraph you cited. You’re absolutely right that any creator can grant whatever rights they wish on a case-by-case basis if all rights are formally reserved. Creative Commons aims to remove some barriers from certain works that a creator wishes to make available unfettered to particular people under particular circumstances and for particular uses, and of course that approach isn’t for everyone.
I agree with you 100% that “a photographer needs to be well educated and weigh the pros and cons.” One point that I wanted to make abundantly clear is that it is the creator’s duty to practice due diligence, whether it be with regard to a license such as those offered by Creative Commons or the terms of service agreement on a photo sharing site.
What has changed since 1980 is not only the format that our media takes but how much easier it has become to copy, remix, and distribute media. That statement had less to do with Creative Commons specifically than it had to do with the philosophy that our culture benefits greatly in the long run from the kinds of remixes and derivations that most creators get defensive about. I have summed this up as “sharing is caring” in previous articles.
My point is not that artists should throw their work into the street and let the crowds have at it. Rather, Creative Commons offers a legal alternative to those of us who do wish to “give back” now and then without writing up our own licenses or doling out terms of use on a case-by-case basis. Perhaps that’s the idealist or the hippie in me talking, but I believe in the power of the remix to shape culture and I believe every artist should recognize the significance of derivative works even if they are opposed to their own work being a source.
When Robert Rauschenberg created “Erased de Kooning Drawing” by spending about a month literally erasing most of an original de Kooning, he was paving the way for modern art in his time and creating something significantly derivative. What is unique about Erased de Kooning Drawing is that its influence is built on the fact that it was derived from another piece of art. Rauschenberg tried erasing some of his own drawings, but to do that wasn’t meaningful.
I should also point out that Willem de Kooning was acquainted with Robert Rauschenberg and gave him express permission to take that particular piece of art and erase it. In today’s world, the Creative Commons essentially allows the de Koonings of the world to announce to the Rauschenbergs of the world that they may do so. In the digital age, however, something can never never really be completely erased… They are only copies.