I know from the number of emails I’ve received that quite a few readers are following the Creative Commons issue I’ve been having with the image titled “50 Reasons Not to Change”. I reposted this image several weeks ago here on my blog and also in my Flickr stream. I saw the image here, though the writer on that site admitted that it was not their creation (the blogger says, “I first ran across this in New Mexico in 1991 very apropos at that time RE: women in the highway and environment departments. The specific source is in deep storage (still) but I’m hoping the creator will recognize it and let me know”). Regardless that the image was not theirs, they claimed a Creative Commons BY-NC-SA license, which simply means you cannot use the image for commercial purposes but you can alter or change it, so long as you attribute back to the image owner and do not change the use license. I also like CC’s statement regarding the required attribution: “but not in any way that suggests that they endorse you or your use of the work”.
So, I received a notice from Yahoo (owner of Flickr) that the image had received a copyright challenge and Yahoo removed the image from my Flickr stream. Following their guidelines I submitted a counter-notification, stating that the copyright challenge had been mistaken and my use of the image was proper. After submitting the claim in its correct format I received this notice:
Please be advised that pursuant to 17 U.S.C. § 512(g)(2)(B) of the
United States Copyright Act (the "Copyright Act") Yahoo! has timely
provided the counter-notification submitted by you to the complainant
(or, if applicable, to the complainant's designated agent) in this
Provided Yahoo! does not receive notice that the complainant has filed
an action seeking a court order to restrain you and/or your company, as
applicable, from engaging in the allegedly infringing activity, Yahoo!
intends to advise you that the material may be reposted, as appropriate
on or about May 2, 2008.
Copyright/IP Agent, Yahoo! Inc.
c/o Yahoo! Inc.
701 First Ave.
Sunnyvale, CA 94089
Now I will wait to see if a restraining order is issued regarding use of the image. I have also asked Yahoo/Flickr to please repost the image with the comments and hits that were already present, though I will be surprised if they can do this.
There have been several frustrating things about this episode. First and foremost seems to be the complainant's misunderstanding of CC licensing. Attribution can simply be a link back to the source, though the complainant seems to want to control hosting, claiming several times that I should have only linked to the original image and not my reposted copy. Yet the Attribution-Noncommercial-Share Alike 3.0 license clearly permits me to "copy, distribute, display, and perform the work" and "to make derivative works".
Watching all of this has forced me to conclude that I don't particularly care for the Creative Commons license right now. I think I'll either need to claim full copyright on my works, or I'll do what Lori Reed and Tony Tallent have started doing, which is to permit full and free use of some of my works — I'll have to do this on an image-by-image basis as there are many photos that I do not want reposted or reused.
By claiming full copyright I require any re-users to ask me before proceeding. That way I'll know who is using my photos and how they are being used, yet I will still be able to permit reuse. I come to this conclusion because I see a lot of images out there with CC licenses but I also see a lot of complaints about use — "you didn't attribute it to me" or "you didn't attribute it properly".
I'm not so sold on this middle ground of Creative Commons anymore, which is frustrating because I really had high hopes for it as an alternative to straight copyright. I think CC creates a murky legal middle that seems designed to give flexibility but ends up creating confusion. If I want credit for a work then I will permit reuse under current copyright law but require attribution as I decide fit — you ask me and I say yes and here's how… If I want it to be usable by anyone then I make it public domain and I don't have the right to come back and say "but you didn't stroke me enough with a great big bold attribution".
And maybe that's what it comes down to. I don't make any real money off of my photos but I wouldn't want any of them used in a negative way — especially the many photos I have posted of family and friends. Yet I have many other photos that I could see being useful for anything from poster design or signage to the "before" images for photography students looking to improve their work. I've even had several of my photos used for history books, online advertising, and greeting cards. The publishing houses and companies contacted me via email and we discussed how the images would be used. But each and every time I got to see exactly how my photo was going to be used and I had the final word on use. I don't see a lot of my photos in that middle area — images that I'd be happy to see used elsewhere without my approval. Ego? Sure. But it's also about my work and how I want it used. Creative Commons lets me say noncommercial but it doesn't (and cannot) have a requirement that permits uses that only I deem proper. But old fashioned copyright does.
So, as time permits I will be moving more of my photos over to Lori and Tony's great new Free Use Photos group. But many of my other photos (whether they can be considered good or not) will remain under traditional copyright. If someone wants to use them then they can ask me (and I thank the many people who have taken the time to ask).
Feel free to differ — many will. I'm even open to changing my opinion on the matter. But for now I'll just wait and see how this whole Creative Commons problem resolves itself.