Creative Commons Comes Under Fire

Posted on 1/7/2008 by Julia Dudnik Stern | Printable Version | Comments (0)

Dan Heller, a California-based photographer, industry analyst and author of several professional photography books, is critical of Creative Commons'  licensing practices. In a 10,000-word series of entries to his popular photo-business blog,  Heller takes on the Creative Commons licensing platform, concluding that it does not fit into the photo world.

This conclusion is not new; it's the position of a pro outraged by the expectation of image use without payment. Heller succeeds in offering a logical foundation for his argument, illuminating many common misunderstandings and explaining complex issues that face all photographers.

"[CC] is an empty shell," he contends, pointing out that buyers have neither risk nor incentive to comply with the terms of a given CC license. Although image use inconsistent with the license would constitute grounds for a lawsuit, no statutory damages will be awarded without previous registration of the images in question with the U.S. Copyright Office. Nonprofessional Flickr users are highly unlikely to have taken this step and are left with "no recourse whatsoever."

What about the pro photographer, the one who has taken the time to file appropriate paperwork?

In this area, Heller concludes that "[CC] has no teeth for well-intentioned photographers... but it has wonderfully sharp and dangerous teeth for those who want to abuse the system." Apparently, CC licenses can be easily revoked, and documenting a particular image's licensing history is nearly impossible. Flickr cannot be indexed by third-party archival Web sites, so once a user removes a CC license from an image, proof of the license's existence or its duration will not be available to the end user.

This results in a rather significant loophole. Heller outlines how an unscrupulous photographer can register copyright ownership of an image, license it using CC, subsequently revoke the licenses and sue users who will be hard-pressed to prove they did nothing wrong. The resulting statutory damages can rise to $30,000. Willful-infringement damages can be as high as $150,000, though this would require the image owner to prove knowing foul play, such as removal of a watermark. As long as the image has been registered, the fact that a photo is available for free is not relevant to one's ability to sue for infringing uses or collect sizable damages.

Though Heller dispels a number of CC-related myths, he thinks the licensing structure's impact on the professional image business will be positive. The problems and lawsuits resulting from use of CC-licensed images "support the notion that people should get licenses from trusted sources (where records of such transactions are made)."

Copyright © 2008 Julia Dudnik Stern. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz


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