Yesterday, Dan Heller posted an interesting article called Creative Commons and Photography in which he decries the Creative Commons not only as an ineffective and misguided licensing structure for photographers, but as a detriment to its own ends when used by them. I truly believe that he couldn’t be further from the truth, but because his article was so specific I would be doing everyone a disservice to leave my reaction as a mere sound bite.

After the jump, more of Dan’s rantings followed by more of my rantings, hopefully to end with a meaningful conclusion… But no promises.

Dan Heller is a prolific stock and travel photographer and a somewhat prolific writer as well. His experiences with the Creative Commons began in the software and technology arena, but his latest article is very much aimed at the stock photography business world. Although it gets off to a good start and presents valid and convincing arguments from a business perspective, it soon begins to lose its footing and creep down a slippery slope into generalities. It is there that I have the most to say, so I will preface this essay with the concession that the Creative Commons licensing structure may very well be eroding the business of selling photographs, even though I think Dan’s reaction is somewhat alarmist even in that regard.

Before I begin to wax philosophical, let me examine the first concrete example Dan provides of the Creative Commons doing harm to photographers and their customers. He describes a hypothetical situation in which a photograph is misappropriated from a private photographer who has withheld use rights (“all rights reserved”). A thief (described in this case as a “12-year-old”) removes any watermarks or copyright notices and places the image on Flickr or another photo sharing site under a Creative Commons license. A business with a need for such a photo simply uses it, conforming to the rules of use set out in the Creative Commons license under which it was (illegally) published.

The original photographer gets wind of this wrongful use and takes legal action against the business, ultimately winning damages up to $30,000 in a clear case of copyright infringement. In Dan’s example, the thief gets away clean because chasing him down would probably cost more than what might be recovered from him, though he is still legally culpable. The business, having been burned in court for many times the cost of legally licensing the image, sets a policy of avoiding Creative Commons work from then on. It’s a pretty good example, except for a few glaring holes:

  • Any photographer who posts his work online at a resolution that would be considered even remotely usable to a business customer is setting himself (or herself) up for disaster. As I have stated in previous articles about watermarking (Protecting Your Digital Rights,) the low pixel count of an online gallery image should serve as adequate protection against any use that may otherwise be a considerable source of licensing revenue. For example, a kid who prints out your gallery image and wallpapers his bathroom with it is not someone who would have paid you fair licensing fees in the first place. Similarly, a business willing to place your photograph at web resolution into any publication of merit is not likely to be a discerning and profitable client for you. Fundamentally, you have a responsibility to police the wrongful use of your work, but from a pure business perspective, misappropriated web-resolution gallery images shouldn’t be considered a financial or professional liability, even in the cases where your watermark or copyright information are wrongfully removed.
  • Dan seems to imply that by avoiding any Creative Commons licensed image, the business in question has now become a less likely consumer of photographers’ work. It seems more plausible to me that they will avoid using images off of photo sharing sites altogether and become more likely to purchase licenses directly from photographers or agencies, which is actually a benefit to those photographers who sell independently and through organizations like Comstock, Getty, or iStockPhoto. In this way, Creative Commons has benefited professional photographers even if it has damaged its own goals.

  • If one of the goals of Creative Commons was to provide a more robust licensing structure for salable work such as stock photography, then they have surely failed themselves in that regard. My interpretation of their goal, however, was to catalyze the evolution of culture by aiding creative people in sharing their work with others who may be apt to build upon it or to disseminate it further. To my mind, the Creative Commons has little place in business, and to claim that they have harmed their integrity by doing a disservice to the business of selling creative work is to overlook the nature of their organization.

Dan goes on to say:

Photographs only take 1/250 of a second to make, and they can be made available online instantly. There are billions upon billions of them online, with millions being added daily. Monitoring and enforcement of CC licensing for photos is unrealistic, unmanageable, and highly prone to both non-compliance by licensees, and to fraudulent attributions by others. This, in turn, degrades the integrity and reliability of the CC system, thereby compromising confidence in it.

First off, as I mentioned in bullet #1 above, any work placed online in a form that is usable to a discerning potential customer, no matter what license or rights for use are expressed in, on, or around the image, is a gaping hole in the hull of your ship, pure and simple. Second, the monitoring and enforcement of any licensing for virtually any work is functionally unmanageable. If you presume that people are misappropriating your web-resolution images for any legitimate use that could represent lost revenue for you, then you must face the possibility that this is already happening to your “all rights reserved” images, because the only thing protecting them is probably a watermark and a bit of EXIF data. This is why technologies such as Digimarc were created; to track the potentially hundreds or thousands of anonymous misuses of your intellectual property, no matter what license was applied to them.

So Dan’s point is actually that restrictive Creative Commons licenses are harmful because they are easily confused with less restrictive ones, especially to an increasingly technology-bewildered marketplace, whereas “all rights reserved” is very clear. I say again, Creative Commons has little place in business, so if you are selling your work, don’t use a Creative Commons license. Reserve all rights and make individual exceptions where appropriate.

Dan then asserts that Creative Commons is simply adding noise to an already complicated world of digital law. He may be right about that, but his reasoning is tenuous at best. The example he uses is from a talk given by David Pogue, a journalist for the New York Times. Pogue essentially asks a group of 500 people whether they think downloading a copyrighted movie or album is “wrong,” and only a handful of people raise their hands. In a world where 1% of people recognize the legal liability of copying creative work that is under full and complete reservation of use rights, how can Creative Commons possibly make the situation any worse? Assuming that Pogue’s 500 people were a statistically representative group, that would mean that 99% of the American population will copy your photographs without a second thought, no matter what you do.

Creative Commons is meant to grease the wheels of the creative machine (notice how “creative” is in their name?), to allow your work to become a part of something more than itself, to contribute to derivative creations, to promote yourself through the spirit of sharing. Dan says that photographs “serve no foundation for anything—they are their own beginnings and endings at once, and provide no opportunity for new development, services, or growth.” Such a naive, business-oriented statement deeply insults me as an artist. Of course photographs serve as a foundation! Not only are photographs inspirational to artists in photography and in other media, but in this atmosphere of digital art, the media has become much less important than the subject matter. Photography as an art form is more pliable and evolutionary than ever before, and we would be fools to try to resist that.

In his article, Dan goes on to say that Flickr is damaging our industry by promoting the use of Creative Commons licenses and doing a fairly ham-handed job of explaining what the licenses mean and what risks are inherent in using them. On that count, I am wholly in agreement with him. I think that Flickr was originally created as a sort of “MySpace for pictures” and was expected to be populated with careless snapshots of kittens playing with balls of yarn. It surely is populated with a great deal of such images, however, as its popularity has skyrocketed it has drawn in countless very serious hobbyists and professionals with intellectual property to defend.

Now I get to quote myself, which is always fun:

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!

Does Flickr bear the burden of explaining these licenses to its users? Yes, I think they are responsible for being conscientious communicators of the message of Creative Commons and of the repercussions and/or implications of selecting certain options on their own website. Are they legally vulnerable in connection to the way they handle the licenses now? Perhaps. Who’s fault is it if someone’s photograph, posted under a free-use Creative Commons license is used in business for significant financial benefit of a third party? The photographer. As a creator, you have the last word when it comes to the use of your work, so be as cynical and discriminating as you can bear to be.

I do not believe that the existence of the Creative Commons, nor its use by photographers and other artists, is detrimental to any professional creative industry. Though it may add confusion to an already troubled and labyrinthine forest of copyright law, and may seem a target of convenience for burgeoning professionals who mistakenly allowed their work to be used without consent, the core mechanics of licensing creative work have not changed. This is both an exciting and confusing time for digital media creators, but it remains our responsibility to act with informed judgment.

Before I close, I would like to thank Dan Heller for taking the time to write such a thorough analysis of Creative Commons from the stock perspective, which was a viewpoint conspicuously missing thus far from most discourse. His article did serve to expose a lot of interesting licensing issues that are hot-button topics for professionals nowadays, especially anyone participating in Flickr as a promotional tool.