I’m a big fan of Creative Commons. If you’re not familiar, Creative Commons is a solution for licensing work that’s more flexible than copyright but with more control thatn public domain. It’s a way to allow other people to use your work freely with simple requirements such as requiring attribution or asking it not be used for commercial purposes. If you want to learn more about Creative Commons, I strongly recommend Creative Commons founder Larry Lessig’s talk at TED as well as Creative Commons’ about page.
I release almost all of my photography on Flickr under a Attribution-Noncommercial-Share Alike 2.0 Generic license. In basic terms, this means that anyone can use my photography freely as long as they give me credit and it’s for non-commercial use. I think it’s a very flexible license especially for other bloggers and nonprofit organizations. For anyone that wants to use my photography for other means, I’m very clear on my Flickr page to contact me if you’d like to use my photography for other means.
In most cases that people contact me wishing to use my photography, I let them use it for free. Although I do charge for for-profit print publications, for example.
On Boing Boing
On Wednesday night a photo of mine (shown above) showed up on Boing Boing with my hand with my OLPC Laptop in my living room. It’s not often that I show up on what’s considered by some to be the most popular and one of the most authoritative blogs in the world. My photo was posted without attribution and in a commercial situation. (Boing Boing, incorporated as Happy Mutants LLC, certainly makes money.)
Normally I am not surprised when someone uses my photography on their website without attribution as it’s common right now for copyright and Creative Commons to be ignored in this kind of context. What is surprising about this situation is that this post on Boing Boing is written by Cory Doctorow, one of the most vocal advocates of Creative Commons in the world. He’s featured on Creative Commons’ website as he’s published entire books under Creative Commons licenses. Doctorow talks about Creative Commons so much that on BoingBoingBingo “Creative Commons is So Awesome” and “Cory’s Book is Translated” (a natural benefit of Creative Commons licensing) are two squares on most of the bingo boards.
So why would Cory Doctorow use my photo in a way that breaks the Creative Commons license? It has to be a mistake, right?
On Other Sites
I went back to the story that Boing Boing linked to, a story on OLPC News about overclocking the XO Laptop. A lower resolution version of my photo is used there and it links back to my original Flickr page. As far as attribution goes, this is good enough for me and this kind of use.
What’s interesting though is that Boing Boing used a higher resolution version of the photo than what’s posted on OLPC News. This means that Doctorow would have had to click the image and go to my Flickr page to get a version of the photo to place on Boing Boing. On that Flickr page is the Creative Commons license.
So I commented on that Boing Boing post: “I’m a bit disappointed that Boing Boing, which is a pretty avid supporter of Creative Commons didn’t follow the CC license on the photo, which was shot by me.” I also sent Cory Doctorow an email asking him to replace the photo or to follow the license. I also gave him permission to use the photo (although Boing Boing isn’t non-profit) if he links back to my Flickr page with attribution. I got no reply from Doctorow, but a few people chimed in with support in the comments.
As with many stories on Boing Boing, other blogs re-blog the content to reach their own audiences and spur their own conversations about it. Creative Commons is designed around this idea of information sharing and republishing, but if one part of the chain doesn’t give attribution and rereleases it under another Creative Commons license, it doesn’t do it’s job.
My friend Ed Hunsinger pointed out to me that Slash Gear picked up the story and the same photo without attribution or a link back. I commented right away and Slash Gear editor James Allan Brady fixed it up right away. Ed later showed me that MAKE blog posted about it too and didn’t give attribution to my photo either. I commented on their blog about it but as of right now is still not approved nor has their post been updated to respect the license.
I’m almost positive that other blogs have reposted the content of Boing Boing’s post as well. All it takes is for one person in the chain to disregard the license for the license to be broken on all subsequent uses.
I’m Curious About Creative Commons
I am not upset at anyone but I am curious. I would let almost anyone use that photography for free, even in many commercial situations. The photo isn’t anything special to me and I have no reason to need extra traffic to that photo on Flickr. This situation has caused me to think more about Creative Commons and how much more realistic it is than copyright as we move more into a culture of information and media sharing at levels that are hard for most people to imagine. If one of the biggest mouthpieces for Creative Commons will seemingly disregard a Creative Commons license and not respond when being asked to fix it, what does that tell us about a future when Creative Commons becomes more widespread?
Updates
Fun to wake up the next morning to see a lot of good comments and emails.
Most importantly, Cory Doctorow fixed the post on Boing Boing. He didn’t get my email but he was alerted to the comments on the post just recently (many of which seem to be removed except for mine). He apologized and said it was an honest mistake. I believe him completely. We’ve shared a couple good emails. I still think this situation raises questions of how effective Creative Commons can be, most importantly among people that disregard copyright in the first place.
Thumbuki writes in the comments that the same thing happened to him on the same day:
(Original Photo, Boing Boing post). This one also has since been fixed.
Joshua Benton writes a very insightful post that addresses my interpretation of “commercial” and illustrates how vague Creative Commons is in this regard. Recommended reading.
Derek Powazek chime ins with a similar example of his wife’s photography used on Boing Boing TV. The kicker here is that his wife also happens to be the Community Manager at Flickr. Boing Boing also eventually resolved this one by removing the photo.
Taylor Carik Takes a look at The New Social Circulation: Frontline, Out of Print, and the XO Laptop Photo
Nature photographer Jim M. Goldstein chimes in on the issue that Creative Commons is only as good as those that use it.
More links and discussion in the comments. A lot of great conversation on this topic; thanks everyone.
Comments 22
Aaron, I think it’s because people tend to only cite stuff at the first level (and at the very best, the second level). It’s lazy blogging and, I’m sad to say I often do the same thing.
If someone asked me to fix it, I’d do it right away though.
Posted 28 Mar 2008 at 16:49 ¶Interestingly enough, it happened to me on the same day with a pic I took of my XO:
http://www.boingboing.net/2008/03/26/free-remixable-music.html
My thoughts on this. Yes, I would have liked to have seen the license followed properly. On the other hand, I’m just happy to see a pic I took on such a prominent blog.
However, I believe in the creative commons, and perhaps I should be taking a more active role in enforcing creative commons.
Posted 28 Mar 2008 at 17:36 ¶The Flickr Community Guidelines sort of ask that you include links back to the flickr page if you use an image hosted there. I guess that this line is blurred if someone downloads and re-hosts the image (e.g., out of bandwidth politeness or other consistency of service concerns).
Posted 28 Mar 2008 at 18:55 ¶Nevertheless, I still think it’s good practice to include the link as well as the attribution. It’s very surprising and disappointing to see this sort of thing happening repeatedly at BoingBoing.
My understanding of CC is that it is a licensing layer on top of copyright. So if someone violates the terms of the the CC license they are in violation of the copyright. Back in the day you slap on a copyright and then someone comes to you to license a photograph you have grounds. The only difference here is the license is generated before hand.
Posted 28 Mar 2008 at 20:01 ¶I don’t know the answers, but I wrote a post about this question — and particularly how CC defines “commercial purposes” — on my blog:
http://www.crabwalk.com/archive/2008/03/29/creative_common.php
Posted 28 Mar 2008 at 21:22 ¶The same thing happened to my wife. Her CC photo showed up in an episode of BBTV. When she and others complained that the use violated the terms of her license, they removed it without a word.
http://hchamp.com/2008/03/05/chieka-on-boing-boing-tv/
Truth is, BoingBoing isn’t as much FOR Creative Commons as they are simply AGAINST any kind of copyright.
Posted 28 Mar 2008 at 23:23 ¶Josh, I just read your post, and I must say that you seem to have misinterpreted Aaron’s post on this subject.
Aaron in no way comes across as being “mad” at Boing Boing, and his main concern was the lack of attribution, not the fact that Boing Boing is a commercial enterprise.
These may seem like quibbling details, but in one paragraph, you managed to completely misrepresent the nature and tone of Aaron’s concerns regarding the effectiveness of a CC license.
Posted 28 Mar 2008 at 23:34 ¶I’ll admit guilt on the “mad” point — I’ll change it to “concerned.” But my post isn’t about Aaron’s attribution concerns. He’s completely right on that one; the CC license is perfectly clear on the matter of attribution. I’m interested in how CC defines commercial use, which to me is a lot less clear.
Posted 29 Mar 2008 at 00:30 ¶Hi Aaron,
I certainly agree, it’s something of a disappointment to see a core CC advocate failing to follow the spirit of a CC license. I wonder though, in legal terms, if the use of your photo in this way might be considered fair use? Fair Use lets parts of material under full copyright be re-used for the purposes of review, and for reporting the news. It’s possible in “quoting” from the original OLPC news article, and including your picture as part of that quote, this use could be considered fair (in a legal sense)? I deliberately hedge my bets since fair use is fairly imprecise and hard to define, but it’s certainly possible. (That said, I’m not a lawyer so I’m definitely not saying it is: I’m just putting the question out there!)
That said, though, to be fair to Cory Doctorow, he might actually be having a weekend off or be otherwise engaged right now and have every intention of fixing this error when it’s actually brought to his attention. Regardless of his exact legal obligations, I’m sure he’ll update the post to accurately attribute the photo (especially now you’ve explicitly given him permission to re-use it).
For me, this incident really does highlight how complex the waters of copyright are, and how both CC licensing and fair use are parts of a very murky set of rules! All of that aside, I have to say I agree most wholeheartedly with your main point: those of us who value CC must do our very best to respect for the legal side and the spirit of CC or the push toward more sensible and transparent rules in the realm of copyright will surely fail.
Posted 29 Mar 2008 at 01:32 ¶(And now having read the other posts linked to in these comments, I realise Josh has made pretty much the same point about fair use already!)
Posted 29 Mar 2008 at 01:37 ¶If someone using your photos fails to follow the terms of your license, you are within your rights to bill them for usage. You are so generously creating content that helps them make money, without it they’d look like craiglist or something. Send them an invoice and perhaps they’ll be more careful with other people’s creative contributions in the future.
Posted 29 Mar 2008 at 01:53 ¶Hey, Aaron — I was as surprised as you to discover that I’d violated your license — it wasn’t on the image where I discovered it and I missed that the Flickr image wasn’t created by the person who’d suggested the item to me (I always credit CC images when I use them, except when they come from the person I’m also crediting for the link, as that seems redundant — have a look through the BB archives and you’ll see that I’m extremely assiduous in this regard).
I wish you’d also emailed me when you found it. It would have gotten fixed a lot faster if you had — I read my email all day long, whereas I look at comment threads a couple times/day.
I’m awfully sorry that this happened, and I hope that you see that it was an honest mistake.
Posted 29 Mar 2008 at 04:20 ¶Cory-
Thanks for the comment oand the explanation. I did email you when I noticed it at this email address at Thu, 27 Mar 2008 16:02:04 -0500. Perhaps it got filtered.
I just updated my post. I do think the example still raises some good questions about CC’s effectiveness. I completely believe that it was an honest mistake on your part, but it’s a very easy mistake to make… even for people that love Creative Commons like you and I.
Thanks everyone for the comments and emails — they and the situation overall has me thinking a lot about Creative Commons as well as what I regard as “commercial use” and what really “fair use” is in regards to these kinds of situations.
Posted 29 Mar 2008 at 08:04 ¶Great post, Aaron. Fair use is still a very grey area and under definition by the courts. The RIAA has one view; I have another and they have a helluva lot more money to make sure their voice is heard and mine is drowned out. It scares me that stories like yours can be spun to show that CC licensing doesn’t work although you didn’t say that at all but simply raised some excellent questions.
Josh Benton’s issues of commercial vs. noncommercial are interesting but ultimately I think sites have a pretty obvious slant. At their heart, newspapers are commercial. At its heart, this blog is not commercial. It is personal marketing and you may get some work from it but that doesn’t change its motive which is noncommercial. And no matter how altruistic a newspaper may want to be, its motive is commercial.
Also commented over at Josh Benton’s blog.
I really do need to get some work done now.
Posted 29 Mar 2008 at 09:06 ¶I wonder why the other comments on Creative Commons in the original post got purged, including mine?
Posted 29 Mar 2008 at 11:00 ¶I sent these to Aaron via e-mail, but I think it would be good to share with all. Photographer Dan Heller on why CC and photography are a bad match.
http://www.danheller.com/blog/posts/creative-commons-and-photography.html
Posted 29 Mar 2008 at 11:56 ¶http://www.danheller.com/blog/posts/follow-up-creative-commons-and.html
http://www.danheller.com/blog/posts/gaming-creative-commons-for-profit.html
http://www.danheller.com/blog/posts/proposal-for-creative-commons.html
Speaking of Flickr and licensing and attributes… there are people who have the option for others to blog their photos directly from Flickr turned on and then have a comment in their profile like “Do not blog my photos without my permission.” I occasionally blog about my faves on Flickr and as far as I’m concerned, if they have the “blog this” feature turned on, that’s as good as permission. I don’t check profiles. “Blog this” credits the Flickrer and links back to the original photo page. As a sidenote, for anyone who uses Blogger and use the “blog this” feature then later edits the post, the credit line disappears from the post. Something in Blogger changes the font to “0″. So you have to change it to “3″ in the html.
Flickr blogginess aside, Aaron, what is that critter in the upper left-hand side of your living room photo? Cat or raccoon or large guinea pig?
Posted 29 Mar 2008 at 20:01 ¶Thanks all for the comments… sorry I didn’t reply to your email Lane… and Wren, that is a painting of a Lucky Cat a friend of mine got for me in Japan.
Posted 29 Mar 2008 at 20:16 ¶A painting? Standing on the floor? Casting a shadow?
Posted 30 Mar 2008 at 00:51 ¶Wren- Ah, I see. That’s Nadia
Posted 30 Mar 2008 at 07:55 ¶Aaron,
I think I am the start of all this, so let me first say that I loved your image of Measure for my post on XO overclocking. I also made sure to link back to your original image as its good web practices, no matter Flickr’s polices. Thanks for acknowledging my efforts to be a good web citizen.
As to the bigger picture of CC, I think its often misunderstood. The big problem I see is that creators often feel that CC is stronger or different than traditional copyright, especially when it comes to the use of copyright content under the guise of Fair Use.
Granted, the four tests of Fair Use – purpose and character, nature of the copied work, amount and substantially, and effect upon work’s value – are gray at best, so there is much subjective analysis on what can be covered.
Personally, I feel strongly that my use of your image on OLPC News is within Fair Use. On BoingBoing, its a little more questionable, but I still think a copyright violation in this case would be hard to prove.
That Cory could’ve been the violator is a whole other story…
Posted 30 Mar 2008 at 10:26 ¶And an example where CC is working, but everyone wishes it didn’t:
http://blog.limewire.com/posts/1616-Even-Charles-Manson-Digs-Creative-Commons
Posted 02 Apr 2008 at 16:24 ¶Trackbacks & Pingbacks 3
[...] An Example of Creative Commons Not Working [Aaron Landry] – An interesting post by Aaron Landry who was disappointed to see Cory Doctorow inadvertently violate a CC license. The issue has since been resolved, but the post raises some important issues about CC, fair use and understandings of ‘non-commercial’. [...]
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