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Thursday, January 03, 2008

The Creative Commons and Photography

Though it's been around for much longer than most people realize, the Creative Commons has been getting some traction in the photography world. With a boost of visibility by the prominence of flickr.com, more people are assigning one of four variations of licensing terms described by the Creative Commons to their photographs, which means that they are making their photos "free to use" under some minimally intrusive restrictions, such as giving photo credit ("attribution").

Is it making headway?

As of December 31, 2007, Flickr's 21 million users uploaded over 2 billions photos. Of those, 56,415,212 (or 2.8%) are tagged as having one of the Creative Commons licenses. For comparison, Getty Images is purported to have about 2 million photos. What we can't compare is the rate of images used between the companies because there's no way to track how many people use the free CC images. Still, we can observe longer-term trends and fill in the blanks: year over year revenue at Getty has been declining in close parity with the growth of photo-sharing sites like Flickr.

Does this mean the end of the paid-for photo licensing business? What is the real effect of CC licensing, and more importantly, what does the future bode for it? I begin by going to the source: what is the Creative Commons, and what does it do?

From their website, the Creative Commons is a non-profit organization that seeks to provide a framework where creators of works can identify their materials as "free for certain uses," while still enjoying some protections by declaring "some rights reserved." Their intention is to seek a middle ground between the more traditional model of "total control" by a copyright holder, and that of public domain, where someone's work is free for all with no restrictions.

The benefits of free.
What benefit is there to giving away something that one can otherwise control how others use it, especially if a profit can be made? To answer that, let's take a brief look back on the history of "free intellectual property," and examine its impact on economy and society.

Let's set our way-back machine to the mid-1980s, and visit a guy named Richard Stallman. This free-thinking libertarian techno-God programmer felt that it was egregiously wrong (putting it mildly) for software companies to sell buggy programs, only to make you pay for them again just to get new versions with bugs fixed. (And of course, the new version would have bugs too, repeating the cycle.) He felt that you should get the source code with the software you buy, and if you were technically able to fix it, you could do so without having to pay for it. If not, then you could hire someone (perhaps the company you bought it from) to fix it. His rationale was that software should be like cars: you bought it, so you should be able to do anything you like to it, including fixing it, or even making it better. If you can't, you then have the option to pay the company you bought it from (or someone else) to do it. But, if the company sells you a faulty product, you shouldn't have to pay for it to be fixed.

Though Stallman says that there's nothing wrong with selling software (even selling "free" software is OK, so long as the buyer was able to get the source code if he wanted it), Stallman personally chose to give away his particular programs. And this is really what changed the culture of the technology industry in the 1980s. His most substantial contribution was the the GNU Project, which later became the basis for Linux. And if you're not familiar with Linux, it is probably most responsible for the evolution of the internet development and culture during the 1990s, if only because it spawned a cultural drive by programmers to create applications, protocols and other technologies that has largely defined the era. In fact, it can be attributed for the eventual de-fanging of Microsoft. Yes, believe it or not, there was a time between 1989 and 1991 when it wasn't clear whether Microsoft's proprietary network, MSNet, would be the de facto standard instead of The Internet. Though some would argue that Google has had a greater effect on Microsoft's dominance, Google's reliance on the technology and cultural foundations of the free software culture is inseparable. Indeed, their own business model is to make all their products and services free, and they make their money from other sources (advertising).

As exemplified by the existence of the internet, the concept of "free access to intellectual property" has had extremely beneficial effects in the broader world, and this is also the spirit of the Creative Commons. Those who've contributed their works to the CC go beyond technology to include university research, academic studies, biological and medical developments, and even business and economic products and developments.

Where the universally-beneficial aspect of "free" can be realized is when core infrastructures can be made available to everyone, who can then build new products and ideas from them. Money is made by capitalizing on new innovations, as well as add-on products or services. Not only does the world benefit from a much higher base-line from which products begin, but the overall economic engine hums bigger and louder. Beyond Google's example of a singularly successful company, there has been a broad emergence of a consulting and support sub-industry, comprised of companies that do nothing more than sell and support free products to those who can't do it themselves (either because they don't have the expertise, or they can't justify the expense). Some of these companies have actually become larger and more profitable than the organization that developed and sold the original, one-time pricey software.

Here, the Creative Commons idea has been a fantastic innovation in licensing, allowing creators of works to contribute to the community as a whole, and to provide a basis for further economic opportunities.

Speaking for myself, I have assigned many of my own works to the Creative Commons and similar groups (before the CC existed). The books I've written in the 1990s have been contributed, the articles and research papers I've published in the 1980s have, and all the technology I developed in both the 1980s and 1990s are all now part of the Creative Commons. My first contribution of this nature was in 1985, when I developed one of the first internet-based email programs. I later used that software as the base technology for a new company I founded, Z-Code Software, which turned out to be the first commercially available email program designed specifically for internet users.

I have always been a strong proponent of the ideas embraced by the Creative Commons because such a model has the rare and precious dual purpose of both contributing to the greater good for all, while providing the most advantageous economic foundation to build a business.

What doesn't fit the Creative Commons model
I have never contributed the songs I've written and published, and yes, sold (which can be heard as the background of my time-lapse photography videos I've posted on youtube), nor have I ever contributed my photography to the Creative Commons.

The reason is because the Creative Commons -- and the entire concept of "free access" -- simply doesn't work for photography as it does for other things. In fact, it is such a bad fit, that the deteriorative effects harm everyone it touches, including the objectives (and the credibility of) the Creative Commons itself. Explaining why involves understanding how copyright law works, where liability and culpability lie for infringements, and how photographs can be easily and massively misappropriated in ways that can catch someone unwittingly off guard. This all can happen in very large proportions that become far too unmanageable to maintain integrity of the system.

Here is a very simple example:
  1. A pro photographer places a copyrighted photo on a website for sale (his own, or a stock photo agency's).
  2. A random 12-yr-old internet surfer finds the photo and places it on his Flickr photo stream, removes the copyright text, and gives it a Creative Commons attribution.
  3. A photo researcher at Big Company Inc. sees the photo and the Creative Commons license, and uses it in an ad.
  4. The original photographer sees the ad, files an infringement claim.
  5. Even though Big Company Inc believed it was acting in compliance with the license, the law doesn't allow for this defense. It is still culpable, and is subject to fines ranging from $750 to $30,000.
  6. The 12-yr-old is technically liable for Big Company Inc's misfortune, but let's face it--no one's going to go after him.
  7. Big Company Inc's lawyers now institute a policy of never trusting a photo having a Creative Commons license.

Here's another example: Virgin Mobile used a photo from a Flickr user who used the Creative Commons license, but the company forgot to check for a model release for the person in the photo. They got whacked for a hefty settlement, even though the photo itself was not the source of the problem. True CC licensing had nothing to do with that, but businesses don't think beyond the simple direct correlation, so the bad apple spoiled the barrel. Virgin Mobile is probably unlikely to trust a Creative Commons license again and is putting strict rules in place to always source images from known, reputable sources (even those that give away photos through more traditional licensing methods).

The dominoes don't stop falling there. It only needs to happen once per company, and as they pile up, the less trustworthy the entire CC model is perceived, compromising the areas where CC is actually beneficial.

One can say that the scenarios -- and thus, risks -- exist for software as well. That is, let's say that 12-yr-old "stole" some application, gives it a CC license, and then starts giving it away. He isn't going to get very far for a number of reasons, all of which illustrate the primary differences between photographs and software and other technologies where CC succeeds.

Technology takes a very long time to develop, and usually requires the collective work of many people. Therefore, a product isn't "stolen" and distributed for very long before the authors or other users in the community find out about it. What's more, there isn't billions and billions of applications that are copied as quickly and easily as photos can be, which could essentially provide cover due to sheer volume. Furthermore, anyone who evaluates and buys software has heard about it some time before running across it and picking it up -- usually, they read about it, or hear about it as a recommendation. End users are aware when they're using pirated software, unlike photos, which you never really know about.

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.

Technology that's been given a CC license serves as a platform for advancements, research and growth, thereby providing social benefit for all. That in turn provides economic opportunities for those who create derivative works, support services, or other enhancements. None of these qualities are shared by photographs, the vast majority of which serve no foundation for anything--they are their own beginnings and endings at once, and provide no opportunity for new development, services, or growth.

As for the societal aspects of making photography available for free, the "fair use" provisions of copyright law already provide for much (if not all) the benefits that CC intended, rendering the need for CC (for photos) moot. That is, photographs can be used without risk of copyright infringement in the classroom, for critique and other uses. (For more information, see Stanford University's summary on Fair Use.)

Then there is the pragmatic aspect of CC. Do enough people understand it to make use of it in the manner in which it was intended? Or is there a risk of CC back-firing and making the problem worse? In other words, how does CC licensing (as applied to photography) affect broad public perception of copyright and ownership in general? Even without CC, there is already a broad sense among consumers that copying photos is perfectly fine. And not just photos, but music and movies, too. More and more public research surveys are showing a massive shift in what is perceived to be right and wrong in this area. David Pogue of the New York Times wrote about his experiences talking to a group of 500 people about this subject. Here is an excerpt from his blog posting, which you can read in its entirety here:

Finally, with mock exasperation, I said, "O.K., let's try one that's a little less complicated: You want a movie or an album. You don't want to pay for it. So you download it."

There it was: the bald-faced, worst-case example, without any nuance or mitigating factors whatsoever.

"Who thinks that might be wrong?"

Two hands out of 500.
What do we do about a society that is already predisposed to ignoring copyright in the first place? What role does CC play in that perception? Of the millions of people who upload and download photos on a regular basis, what percentage of them are going to look at whether the photo even has a copyright? Whatever you think that number is, now ask yourself whether they are going to look beyond that yes-no assessment of whether its copyrighted to actually looking at the terms of use, such as CC. And of that number, who's going to read the finely-worded details of each of the various forms that CC can take? And of those people, how many do you think understand what they are reading? As you think of that number, remember this: 50% of people in the United States cannot identify either Mexico or Canada on a map. These people gather in discussion forums and have arguments with one another on their respective interpretations of what CC licensing means and how it is applied. In short, CC is just not the best model for the general public.

Yet, it's the general public that, by and large, licenses photos now. This was a task once handled only by informed and knowledgeable photo researchers who knew their business, and they bought them from people who were equally well-informed. But now, those jobs are held by common consumers who often split their duties with many non-copyright-related tasks in small offices. They are going to be the least informed (and least interested) in this subject. Combine that with the fact that we are culturally in a time of indifference to digital content licensing, and you've got a recipe for disaster.

That disaster? Tons of money to be made and lost through infringement claims. While some photographers who choose CC licensing may not care that much about monetizing their media, their indifference only adds to the unpredictable volatility (and hence, the risk factor) that a user of an image must consider.

And let us not forget the whole mess with photos of people or things that may need additional model releases before someone else can publish them. One can argue that it is for this reason alone that CC is causing more harm to the understanding of photo licensing than any potential (and hypothetical) benefit it may bring. Facebook, who currently boasts having over 4 billion photos, got itself into trouble by trying to use unreleased photos of people for ads, as reported by The New York Times in this article.

Could Flickr (Yahoo) Bear Ultimate Risk?
And here's another potential casualty of CC licensing that few have considered: People assign CC licensing to their photos because Flickr strongly advocates it. Worse, they provide no warnings or balanced information about what the risks may be to licensees. Of the 53 million photos on flickr.com, I'll bet that none of the ones that have people in them have model releases. The Virgin Mobile case is only the first of many more to come if this environment is to continue. This actually may turn out to be the ultimate doom for CC (not to mention Yahoo/Flickr) if infringement claims continue to rise. At some point, people may say Flickr is liable for contributory infringement, especially if one can show that they are aware of the ramifications of intended or unintended copyright infringements by its users, and/or the unstated risks of using CC photos of people that may not be released.

And if Flickr does get sued, it may turn out to be akin to the litigation of cigarette companies, where people claim that they knowingly sold a harmful product. The difference, however, is that cigarettes packs are conspicuously marked with health warnings. Flickr and other sources that advocate CC uses for photos do not give warnings, increasing their liability for contributory infringement.

A similar kind of case is brewing right now between Tiffany and Ebay, as reported by The New York Times here. From the article, "Tiffany argued that the online auction house was far more than that: it is a distribution network that enables the trading of counterfeit Tiffany items." Could someone file a similar claim that Flickr is more than just a photo-sharing site? That it's really a distribution network that more than just enables copyright infringement, it actually advocates and provides the tools that facilitate it. It would be particularly hard to defend if they've already been made aware of this fact and chose not to do anything about it. (And they are aware of it by virtue of the lawsuits that have already happened.)

Whether Yahoo would prevail in such suits is irrelevant to what will happen to the perception of CC: it's simply inapplicable to photography, and unreliable for liability purposes. No one will want to touch it, which may affect the goodwill that CC enjoys for other kinds of IP.

On the other hand, Flickr's problems in this area may be defused by a different reality: that most people (should I say "enough" people?) are both aware and fearful of CC. Remember that data on total photo assets that I alluded to at the beginning of this article, where I mentioned Getty's 2 million photos versus Flickr's 56M CC photos? Well, Getty still earned about $800M last year (2006) from their comparatively smaller lot, which means that many buyers still know and trust a particular source, and the price paid for a photo is worth the lack of risk that comes with a free one under CC licensing. Granted, we don't know how many people have published CC photos, as there is no way to track it. However, since compliance with CC requires attribution, we can use anecdotal data to observe how many times we've seen photos published in ads or articles or even online that specifically give such attribution in accordance with CC terms. I personally have never seen one. At least this suggests that the larger corporate buyers (media networks and ad agencies) know that CC is not appropriate for photography.

Tying it all together
There's no question that the Creative Commons is critically valuable and important to the basic fabric of intellectual property (IP) foundations and economic growth. But it doesn't apply equally well to all kinds of IP, such as photography. To determine whether CC is appropriate for a given IP, apply these four tests:

  1. Is the IP Complex or Sophisticated?
    As a general rule of thumb, the more complex an IP is, or the longer it took to develop, or the more people it involved, the greater it can benefit from placing it or some of it under Creative Commons licensing. Develop a new way to split atoms or derive energy, and CC licensing would be perfect. Conversely, anything that can be instantly produced and continually replicated on a massive scale, and which cannot possibly be monitored, is not suitable for CC licensing. It creates a greater opportunity for fraud (intentional or not), causing a cascade of legal problems for unwitting users who may find themselves inadvertently infringing on copyrights.

  2. Is the IP Extensible?
    CC licensing is most appropriate for infrastructure technologies, ideas, research, complex data sets, and anything else that can serve as a foundation for future work and additional development. This is discrete from the "complexity" test because very simple things (such as algorithms) can be created quickly and simply and be well-suited to CC licensing because of their extensibility. If an IP is not extensible, nor is it complex or sophisticated, then the more likely it is to be subject to the inefficiencies and risks described above.

  3. Is the IP used by Knowledgeable and Educated Adopters?
    IP that can be casually and easily "used" by uninformed and uneducated consumers are not well suited for CC licensing because the terms are largely misunderstood and/or not adhered to, which again, devalues the perceived usefulness and integrity of the CC model. This effect is made worse if remedies are either non-existent or untested by the courts. Even though such items' traditional copyrights could be (and are often) violated routinely (such as they are with photos), a CC model only worsens these conditions, as it exacerbates the already overly lax perception of the "morality" dilemma of copyright infringement held by the general public. Conversely, more complex IP is better suited to CC licensing because those who would use and adopt such IP are part of a smaller, more coherent group who realistically police themselves as a community.

  4. Does the IP potentially infringe upon the rights of others?
    It seems like an obvious statement, but a photo of someone else may be "free" in monetary costs to obtain for use, but it is far from "free" in a legal sense to use if its publication would require a release from the person in it. This is paramount to entrapment of a licensee. And chances are really high that the consumer-photographer has no idea what a model release is. Chances are equally high that anyone that chooses to use a CC-licensed image also has gross misunderstandings of what a release is and when it is needed. (For a better understanding of this, see my articles on model releases on my website.)
It makes sense to apply CC licensing to things (as the creativecommons.org website says) such as Genome research, Wikipedia, various software development environments (linux, etc.), educational research and other studies, medical research, and so on. Each of these is great for CC because it's not something someone can do in 1/250 of a second. Each of these is difficult, requires time and investment, and whose uses have broader universal appeal.

Common Misconceptions about Creative Commons
Below are some statements made by advocates for CC and photography, each of which are followed by my comments.

CC enables faster transfer of information where other methods are too slow
CC does not transfer information; it is simply a statement of "terms of use." Because of the high risk of liability by anyone that publishes a photo that would otherwise require permission (irrespective of whether it has a CC attribution), they should contact the originator of the work and confirm 1) that the work is theirs, and 2) the use in question is permitted. That's right--just because a photo may have CC attribution does not mean that it is free for any and all uses. The safest thing for any publisher of an image to do is clear it with the actual photographer. Failing to do so increases the risk of copyright infringement and heavy fines, let alone the legal fees in protecting oneself. Even if the publisher is right, an ounce of prevention is worthwhile. In fact, it's not a far stretch to see unscrupulous photographers set up traps specifically to target users of CC photos, only to ensnare them with legal claims for the sole purpose of collecting settlements. So, the bottom line is that CC does not speed up the process of licensing photos at all, if the licensing is done safely and properly. The unintended consequences of CC is that it promotes unsafe licensing behaviors by giving a false sense of protection that a photo can be used.

CC supports a utopian community model of shared information
Again, the law of Unintended Consequences. You can do yourself more harm than good if the application of CC creates the kinds of problems that stain its reputation and usefulness, thereby turning more people against it. Supporting a model of shared information is a wonderful idea that I support, and it as as simple as just allowing people to use your photos or other IP, provided they contact you and confirm its usage. CC does no more to support this model than just acting according to your principles.

There is an extreme position that some people have that all creative works should be in the public domain, and no one should own anything. This is as unrealistic as removing gravity from the universe. Sure, it would be utopian to float around in space, but our atoms would stop clinging to each other and we would cease to exist. (Who knows: may that is a utopia.)

CC enables a fast way to develop a name for yourself and gain exposure
Photos are not like software, where you can give away a single program, and it gets popular, spreads around the net, and then you suddenly have a name. A photograph is not a platform by which you can launch new products and services people pay for, nor does it facilitate the distribution of your work.

You develop a name for yourself by establishing an ongoing web presence, building credibility within the market segment of your business or your artistic endeavors, and developing a large body of work that you churn and promote heavily. Yes, one can give away photos for free as part of a promo campaign, but one doesn't need CC licensing to do that, nor does it act as a catalyst in any way. Most people who pick up photos for some sort of publication have next to zero interest in who the photographer is. And of those who do care, they don't go searching for CC images--they search for those well-established photographers that are already famous.

CC is very fast and easy.
Doing nothing is faster and easier than going to the effort of assigning a CC license. Moreover, doing nothing gives you far greater freedom of choice about what you want to do with your photos because you haven't given up anything, including the exact same opportunity to provide photos for free. Granted, registering your photos with the copyright office takes effort, but you don't "need" to do this unless you genuinely want to make real money with your photos. And if you want to do that, CC licensing is definitely inappropriate.

CC provides free access for educational use
The Fair Use provision of copyright law already provides that without requiring you to give up copyright or any other of your rights. Granted, most photographers and educators don't know about this very well, and the net is rampant with overly assertive claims of infringements. You can read more about it in this article from The New York Times.

CC is ok to use with limited to no impact to the photographer (let alone people in the photos)
This is a prime example of how grossly misunderstood CC licensing is, and how it creates a false illusion of "usefulness." That last part, "people in the photos", is entirely wrong, as we learned from the Virgin Mobile case above. The people in the photos have given up no rights whatsoever, as we know from basic privacy and publicity laws.

CC is quickly becoming the de facto licensing structure.
Though the application of CC to images is clearly on the rise, outnumbering what resides in the data banks of stock agencies, it still represents a tiny percentage of the overall market of licensed photos. For details, my two articles articulating the size of the photo licensing market here, and here. Furthermore, of those who use CC images, most do not act in compliance with it (by giving attribution). All this only undermines CC's effectiveness and perception of value.

Summary The Creative Commons has a wonderful vision and has done great things for the global community of innovation and development of technologies, medical sciences, research and other intellectual endeavors. Yet, it's not a one-size-fits-all solution. The Creative Commons and most other similar efforts have largely been focused on technology, which is not only where it has been most effective, but it is best suited. It's understandable that anyone with such a vision would want to expand it to other forms of intellectual property, but doing so in an uncontrolled and ill-considered manner will find those exceptional cases where the square peg just doesn't fit. Photography is just one such place and the future of CC will largely depend on how well its board and membership deal with these exceptions.

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