Some Rights Reserved: A Creative Commons Survival Guide
The popularity of Creative Commons is increasing rapidly, however few people understand the implications when releasing their work under CC or when using CC creative works. Creative Commons is a potential minefield. Web sites such as Flickr make it very easy both to publish and use published images under Creative Commons without understanding all the issues. Here I will outline some of the benefits that might make it worth the risks, as well as things you should know to keep yourself out of trouble.
What does Creative Commons actually do?
Creative Commons licenses allow other people to distribute your work as long as they follow the specific conditions of the license. It is the only widely used license for copyrighted works that allows free redistribution, and variations of the license can even allow people to create derivatives of the work or use it commercially. It can be applied to images, audio, video, writing, and any other copyrighted work.
Copyright vs. Creative Commons
The first myth we encounter is the idea that Creative Commons replaces copyright. Nothing could be further from the truth, and this has many implications. For example, violation of the CC license automatically invalidates it (for the violating user), while leaving intact all legal protections of copyright for the artist. Even when other people distribute your work under Creative Commons, you remain the legal copyright holder of the work. It is just a use license, not a replacement for copyright.
Are usage licenses necessary?
Every legitimate use of your work must either be allowed directly by copyright, or covered by some kind of usage agreement. Under copyright alone, there is only Fair Use and self-publishing your own work. Virtually every other thing you would do to market yourself or monetize your work requires some kind of additional usage license. Otherwise, the user risks being sued by you even if the way the work is used seems innocent enough. In short, if you don’t have some plan for how you will license your work, then you have no plan for getting it into other people’s hands. Copyright on its own forbids most uses of your work by publishers.
Can I still sell my work?
Creative Commons is compatible with other non-exclusive licenses. You can sell or give away your work under Creative Commons. You can also offer different licenses for different versions of the work (for example different image resolutions.) However, all Creative Commons licenses allow others to distribute your work under Creative Commons for free (and possibly for payment.)
So, what are the risks?
All the risks come down to one basic problem: People use Creative Commons without understanding how it works or what their responsibilities are. Though most of the attention has been on the rights of the content creator, in most cases it is actually the user that can get in trouble quickly.
Loss of control
Even artists who are already using Creative Commons often don’t realize how much they are empowering others to distribute their work. The CC license allows other people to share your work as they see fit without consulting you, as long as they follow the conditions of the license. This can be difficult for artists who are used to having a lot of control over how their work is presented.
Attribution is mandatory
The single biggest CC violation is failure to properly attribute the artist. This violation automatically invalidates the CC license and can even lead to a lawsuit by the artist under copyright law. Unlike some of the other CC conditions, the attribution requirement is not ambiguous in its wording at all. You simply must attribute the artist and specify the license under which the work is used.
All other conditions are a nebulous ambiguity
As worded by Creative Commons, no one has any idea what “Noncommercial” or “No Derivative” means. These terms can mean different things in different industries, and to different people. Creative Commons has done little or nothing yet to resolve this (though they do have a study under way to try to define noncommercial.) As interpreted by many artists, a no derivative, noncommercial use would be more restrictive than what is already covered under Fair Use in US copyright law. Thus the CC license (as interpreted in their minds) is at best redundant and at worst unenforceable. Unfortunately, there is a lot of room for misunderstandings here between artist and user.
Model releases are still required
Creative Commons does not erase the need for model releases where they are normally required. Virgin Mobile figured this out the hard way. Users of CC licensed images still have a responsibility to ensure that proper model releases exist, subject to the same standards as under copyright. There is nothing in the CC license that changes this.
Authenticity of the license must be verified
You need to be sure the person granting the license is actually the copyright holder. It is very easy to falsify a Creative Commons license. This is one of the biggest complaints about Creative Commons, however it should be noted that similar risks exist under normal intellectual property law (copyrights, trademarks, patents), as well as under other licensing arrangements. If a malicious third party falsifies a CC license for a work, and you use the work under that license, you are still subject to legal action by the true copyright holder.
The user must retain proof of the license
There is no central database for Creative Commons licenses, and no recorded transaction that takes place. Meanwhile, the copyright holder can modify or revoke the Creative Commons status of a work at any time. Existing users are still covered under the old license, but only if they can prove what license was granted. There is no system in place to do this for you, so you have to be prepared to manage this yourself (which is not always that simple.) Gradually, services are emerging to help with this, such as ImageStamper, but for many kinds of content there is still no easy answer.
It’s not a shortcut
Creative Commons is very different from a traditional usage license, and shouldn’t be treated like “free stock.” For publishers, this might open the door to some innovative new business models, as long as risks can be mitigated by avoiding content that appears to be high risk, and problem content can be pulled easily if needed. For artists, it can be a useful tool to expand your reach, as long as you can tolerate other people freely distributing your work.
Let me know in the comments. I’d like to hear your experiences, good or bad, with Creative Commons. Feedback on the accuracy or clarity of this article is also encouraged.