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Saturday, January 05, 2008

Follow-up: Creative Commons and Photography

My previous post, The Creative Commons and Photography, has generated an atypical series of emails, prompting me to flesh out particular points that have either been misunderstood, or left people hanging as to what bodes for the future. As one person put it, "What do we do? What'll happen?" So, I want to fill in some of those blanks and address some of the misunderstandings.

First and foremost, many people considered my posting about the Creative Commons as a rant against something that I felt was hurting my business, or was bad for the industry. No, nothing I ever do, say or publish has ever been as an "advocate" for photographers, the industry or my own personal photo business. One of my personal and professional pet peeves is hearing photographers say that such-n-such is "bad for the industry" or "bad for photographers." The only thing that's really bad for photographers is when people say that something is bad for photographers.

(For a clearer picture on what my goals are when I write blogs, see this post.)

As it turns out, I believe that good, serious pro photographers can, and will benefit from CC, largely because licensees must assume too much risk when they use CC-licensed images. This will turn most buyers back towards known and trusted sources, happily paying license fees for content. I'll come back to all that later.

But first, let me begin by clarifying that the point of my previous blog post was to illustrate (through many examples) why the Creative Commons is hurting itself trying to fashion its CC licensing model as appropriate for photography. Though CC is great for some intellectual property, it's not a one-size-fits-all solution. As the cliché goes, "The road to hell is paved with good intentions."

To illustrate that, I cite an audio interview with CC's founder, Lawrence Lessig, where he explains the intent of CC licensing. He describes CC's goal as a simple, streamlined method for those who wish to make their creative content available for free. While this is a fine endeavor, Lessig, a lawyer (and a professor), takes his first step down the paved road of good intentions by crafting a set of legally defensible postulates that, technically, can survive the treacherous terrain of lawyers sparring in the drama of a courtroom. So, although he has what appears (on paper at least) achieved what he intended, what lies outside his expertise is the broader scope of sociology and economics, both of which are necessary if CC is to be successfully deployed. That is, CC needs to stand up to the far more rigorous and more brutal terrain of the free market and people's behaviors. These two forces tie closely together like intertwining threads in a rope, which happen to be much stronger than his single thread of an iron clad legal specification.

Where Lessig has it right is the reality that "free" will always exist in photography. His objective of streamlining the process of declaring content as free seems logical. What he fails to grasp, however, is that the fundamental problem with "free" is it's close association with "risk." If something is free, it can be tampered with, which means that it becomes a risk to anyone that uses it. The more you try to make "free" stronger and more visible, the more you drag "risk" along with it. These are the concepts that a lawyer doesn't readily consider at first blush, but an economist does.

What Lessig is attempting is to break down the barrier of entry in the photo world using the Creative Commons as a battering ram by spreading the philosophy and attraction of "free." While the photo industry is not the largest in the world, it's got a pretty firm footing in our society that cannot be quite so easily broken, rocked, or even shaken a little without a rather massive force behind it. And the CC isn't such a force. What happens when you try to plunge a weak battering ram into a much bigger and strong barrier? The barrier doesn't get hurt; the battering ram does. And that could be the unintended consequences of CC if it isn't careful.

I do not feel photographers or anyone else in the photo industry should regard CC as a threat, or any kind of concerning trend. I see CC's role in the photo world as living in a semi-conscious state, briefly waking up now and then to strike fear into unsuspecting photographers, only to drift back into a coma. (Outside of the photo realm, however, CC should retain its vigor--provided, of course, that its reputation doesn't get too badly stained by its missteps.)

My earlier post summarized the inherent liability publishers assume when using a CC-licensed photo, but I'll add some clarity to address some of the earlier misunderstandings:

  1. The ease in which naive consumers can (inadvertently or not) copy others materials and place it under CC (with or without understanding what CC is) is very high.
  2. The incentive for photo copying is enhanced by the nature of the exponential rise in social networking sites, which use photos to adorn pages and define/express personalities. This, especially when there are no consequences to having copied photos. My example included a 12-yr-old copying a photo and assigning a CC license--he is "responsible," but bears no real-world risks. When companies have to pay the fine for an innocent error on their part resulting from a crime that someone else did (a someone who cannot be feasible pursued), this hurts the CC concept.
  3. The social perception of the morality of freely using content is swinging very quickly to the permissive side, and CC only adds to this perception. This can actually benefit serious pro photographers (for reasons discussed next), but the users of photos can be quite seriously hurt. People who work in organizations that are required to abide by copyright laws may have employees that are not psychologically predisposed to thinking about where and how they get the images they use as part of their jobs. But, when the company gets sued for infringement, and they start to follow the trails back to how it happened, new policies are set up to avoid a recurrence. Again, that's another way CC is harmed.
  4. The lack of model releases for CC images also increases risk substantially, leading people to fail to recognize the subtle difference between what is permissible to use from a copyright perspective, versus that of a publicity right by the people in the photo. I find it highly unlikely that anyone who takes pictures with the intent of giving it away for free is going to go to the effort to have someone sign a model release. It could happen, but consider the risk assessment of a company considering a particular photo. Yet another strong reason why CC harms its own reputation as a viable licensing method.

Another point I raised in my earlier post is that Flickr's "promotion" of CC is not entirely honest. Advocating unverified CC-licensed images is like selling radar detectors to people without warning them that their state may not allow them. Consider how many such devices would be sold in those states that didn't permit them if the company disclosed those warnings up front? Sure, it's legal to sell them and to buy them, but the company isn't going to penetrate a large portion of those markets. And that's precisely the concern when it comes to publishing photographs: all states have publicity laws that require a release in order to use a photo of someone in some contexts, regardless of the price paid to the "acquire" the photo--including the free ones that have CC licenses. Not all CC photos have people in them, nor are all CC photos illegitimate, but Flickr provides no disclosures about the risks involved. Is this illegal? Could someone come back and make a claim? How would a court rule? I suspect we'll find out someday.

The next question is, does CC increase the risk of getting sued than if the photo weren't under CC control?

To consider that, let's examine the days before CC: "free" photos were acquired either illegitimately (by "lifting" it), or because the acquiror contacted the photographer and asked to use it. Asking permission results in no risk (if the photographer grants the permission and authenticates that he is, in fact, the photographer), but what about the "lifting" risk? How is this less risky than CC images? On an individual basis, it isn't less risky. But, industry-wide, there would be fewer such events. Why? This reminds me of the joke: "What's the difference between a car salesman and a computer salesman?" "The car salesman knows when he's lying."

When it comes to the risk of using stolen images versus CC-licensed images, the difference is that the publisher knows when he's using a stolen image when he steals it himself. If he's using a CC image, he doesn't know. And for many people, this psychological barrier is significant. Because a CC-licensed photo gives the illusion that the photo being acquired is legitimate, it's very disturbing to think you could be sued anyway. CC images are clearly more likely to be legitimate than stolen, but the nature of the risk is still high enough that the overall industry-wide adopting of CC won't be able to penetrate that barrier of broad acceptance.

For all these reasons, the application of CC to photography is not sustainable. Worse, it makes the ground fertile for disproportionately higher occurrences of copyright infringement or privacy/publicity rights, which in turn hurts the perceived effectiveness and value of CC.

One person asserted that such a scenario could always exist with any CC licensed intellectual property. True, but the primary difference is a matter of scale: when millions of images have CC, it creates an environment where the risk of control and public lash-back is disproportionately higher than other IP licensed under the Creative Commons.

What's more, other IP doesn't have the same kind of acquisition-to-product lifecycle that photos do. For example, one can inappropriately acquire a technology for genome research that is believed to have a CC license and begin to deploy it in an R&D effort. But it will be years before a product will come to market, providing ample time for an erroneous assumption about the CC can be corrected. So, not only is the number of such scenarios far fewer than the millions of photos that are added online daily, but the time line for product production is slower.

The risk that licensees assume with CC is one reason why pro photographers should not feel threatened by it. Another is one that I had (wrongly) assumed was self-evident in my prior posting: people who attribute CC licenses are not professional photographers (or at least, won't last very long as such). So, publishers who look for CC images are rooting around at the bottom of the barrel for quality. Sure, you can find some really great photos that consumers make, and some of them may have CC licenses, but this is also true of finding valuable antiques as a flea market in Oakland. (I don't hear a whole lot of complaining from retailers about how flea markets are hurting their businesses.) That photographers complain about CC's impact on photo licensing is misguided.

Photographers' other main concern about CC, they believe, is that it perpetuates the concept of "free images," which they feel hurts the long-term perception of price. But that, too, is a fallacy for two reasons. First, when licensees worry about the risk of free images, as just discussed, it makes it much easier to justify paid-for images. Secondly, as has been studied ad nauseum by economists for years, the perception of value is affected by far more variables than just its price. And even the pricing variable itself has inverse psychological perception factors that can be used to manipulate buyers acceptance to pay higher prices. For detailed analysis on this, see my posting, The Myth that Microstock Hurts Pricing.

In the same way that Microstocks don't really hurt pro photographers because they fail to properly penetrate the market that pros can still quite easily manage, CC photos also don't really have a substantial footing in the low-end market either. And because CC suffers from the "risk" problem that Microstocks don't, pros have even more of a competitive edge that they can (and should) exploit. So, in all, CC's effects are currently only superficial, and any illness that real pros may feel is either psychosomatic, or they're attempting to blame phantoms for their own ineptitude. As the market continues to familiarize itself with the perils of CC-licensed images, the prospects for pro photographers only gets better.

Then there's the question of the waning sense of morality for stealing online content. To that, it has also been demonstrated that the likelihood that someone chooses to steal an image vs. pay for it does not rise or fall with its price. Those who steal do so for one of three reasons:
  1. A (misguided) sense of ethics or principle
  2. Laziness (for going through the purchase process)
  3. Belief that their intention falls under "fair use", and/or their use is too inconsequential to bother with the licensing process.

In other words, few steal because they can't afford a photo. What we're really interested in is those who will license, even for minimal amounts of money (including free). This is largely because they are aware of copyright law, and thus, its consequences (if not just the morality of it, short supply though that may be in nowadays). Once someone is willing to pay for an image, the matter of price is an entirely different topic than CC. But it does affect the mindset of an honest person that wants to use a CC image. The CC may make it free, but again, this is balanced by the concern around risk.

This raises the question of what people do with CC images, especially if they just want them for free (or to steal them). This brings me to a quote made by a blogger named "Aaron" that someone sent me. Aaron said:
Any photographer who posts his work online at a resolution that would be considered even remotely usable to a business customer is setting himself (or herself) up for disaster.

While it's impossible to say what people do with CC photos specifically, the industry-wide norm is that the most licensed images are used for the web or other electronic devices, both of which require very low resolution. (Online uses do not garner the greatest amount of money, just the most common use.) Also note that TV resolution is only 640x480, which is also considered "low-res" by photographer's standards.

Aaron used the above quote to discredit my discussion about CC, declaring that it had "glaring holes," the above being one of them. That Aaron didn't consider that low-res images have very real economic consequences is the first step towards a stream of misunderstandings and erroneous analysis that most photographers suffer from about their own industry.

Aaron also expressed doubt about my claims about people copy photos and apply CC licenses to them. This, I have seen with my own photos on Flickr. Though I do house-cleaning on such a problem now and then, you can get a sense of the kinds of things I see by going to flickr.com and searching for "danheller". You'll find many users who have copied my photos (and I keep very few photos on flickr). Though none currently have copies that have assigned the CC license (at the time of this writing), they do come up. I only contact those who've applied the CC license to the pictures, and I ask them to either remove the CC, or to remove the photo completely. And they all have happily agreed to do so. Moreover, none of them really understood what CC was, underscoring just how uninterested (let alone uninformed) most consumers are about the subject. (My motto: "never attribute an act as malicious if it can be more easily explained by stupidity.")

All this underscores how licensees get themselves into trouble by way of unwitting consumers. One particular man who copied my pictures and assigned the CC license was an 80-yr-old that did it because the Flickr page made it look like he was supposed to. (He got the photos from my website, not from my Flickr pages.) When we discussed the matter, he was amazed to learn that money can be made licensing pictures online. (I empathized with him, stating my own amazement that people will actually pay $2 each for ringtones and wallpapers for their cellphones. It never ceases to baffle me what people will pay for.)

So, what are the alternatives to CC? What comes next?

As usual, my crystal ball is at the cleaners, so I can't say how all this will turn out. But I can confidently say that the options are very limited. One reason for this is that you can't take "free" out of the economic equation; it will always be part of the photo industry. If anything were to evolve in this area, it must be one that balances the social and economic realities of the open market with the legal aspects that CC currently addresses.

If CC is going lead in that direction, it will have to address its drawbacks first by devising a way of reducing the risk for licensees. One can argue that such a task is not CC's job, but without such a thing, CC can't survive. What may save CC is partnering with a different organization willing to implement a photo/photographer authentication system with credible model release checking. But this would involve a costly infrastructure to implement. Yet, herein lies potential opportunity for an emerging market. Just like how fast-food restaurants subsidize their money-losing products like meat with high-margin items like soft drinks, a social-photo site that has some of this already in place might provide a dual environment where lower-risk free images are available side-by-side with those that cost money.

Yet, if such a thing were to exist, it then begs the question about whether enough people would choose the option to "make my images free" if it were merely a checkbox that was next to the checkbox that says, "pay me a quarter if someone's dumb enough to buy it."

And then there's the buyer. If they were given the choice between "free images, with disclaimers" and modestly priced images, it wouldn't be very likely that the "free" versions would be chosen very often.

The concept of CC would never survive under these two conditions. It could be that the only way CC can survive is to withhold disclosures that could frighten licensees, and to withhold other licensing options to photographers who submit images.

Since CC won't survive otherwise, the only other option I can see is more like what Microstocks are doing, which isn't "free" images, but extremely low cost ones. Though microstocks have dismal business models on the whole, I could envision similar models implemented by large and successful social-network sites. Flickr seems to have other objectives that don't seem to include monetizing their photo assets, so it isn't clear who would pick up the ball here. I've discussed this in much greater detail here.

Alas, in the end, it's probably most likely that the current form of "free" will never really change: a number of people just give their pictures away because they don't care, and a number of publishers will use them, and a number of lawsuits will result. And CC will bob up and down the turbulent waters of the photo industry.

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