Royalty Free no longer exists

I have always gotten a continuous stream of questions about Royalty Free vs. Rights-Managed images, and I usually just send people to numerous posts I've written in the past.

But a recent email to me concerning Photoshelter's use of the terminology compelled me to post a short blog entry on the subject to try to make it even simpler to understand.

Royalties are payments made to authors (photographers in this case) in exchange for the right to sell works (images). The moment any photographer is ever paid anything by an agency, s/he has received a royalty. Even if it's a one-time payment.

Rights Managed ("RM") means that someone has the right to say how a photo may be published. There's always someone that has the right to manage a work's usage terms. Yes, "unlimited, unrestricted use" is still "managed" if that's what the rights manager wants. Even public domain and creative commons are terms stipulated by someone -- usually the author.

By definition, ALL images are Rights Managed, even if the manager chooses not to assert those rights, or is very liberal about how others may use the photo.

Royalty Free ("RF") refers to a special kind of license agreement that can only take place between two stock photo agencies. Here, the primary stock agency grants another agency the right to resell images, and that second agency is under no obligation to pay royalties back to the photographer.

Why would such a thing happen?

Before the internet (and up till mid-1990s), distribution of images to buyers was difficult. Smaller stock agencies that couldn't sell some supply of images started selling them to OTHER stock agencies with better distribution channels (usually, the early internet adopters). Because these images were usually lower quality, the concern was that these images might not sell. In order for the deal to make financial sense for all parties, the photographer was paid a one-time royalty for the transaction, the primary agency got a single, lump-sum payment from the secondary agency, and that second agency was now on the hook to make some money. Sometimes they did, but often they didn't. But they could only agree to take this risk so long as they were not obligated to pay royalties back to the photographer. These were royalty-free images. 

At the time, photographers were finally making money from images that would have otherwise sat unsold, and the smaller agencies were often seen as tributaries to the main stock agencies, who themselves were taking advantage of a very quickly expanding base of buyers because of the growth of the internet.

As the idea showed profitability, more agencies started selling and reselling the same images in the same way to many stock agencies, creating a huge market for RF images. Each time, the photographers would get royalties from each such sale. And, in each case, the "royalty free license" meant that each (secondary) agency down the distribution channel was not obligated to report sales or pay royalties to the photographer.

The tipping point came when the ease and cost of access to the internet allowed those smaller agencies to sell directly to the buyer. And, for the buyer to find those images through better search engines. The need to feed the primary agency networked collapsed, which coincided with the time when Getty's stock price was plummeting from the mid-$80s to the low $30's, when they were finally taken private. Note: Getty's price didn't plummet because of the rise of RF images. The entire economy of images was falling precipitously because no agency could control (choke) the supply channel any longer. All agencies were hurting and RF was no safer than traditionally-licensed images.

I am currently unaware of any actual Royalty Free Licenses being used in photography. I believe it no longer exists. (The practice is still used for clip art, icons and some other kinds of media (smaller music labels) where channel distribution is still difficult.)

So, why are the terms, "RF" and "RM" still used? 

Remember how those secondary agencies were on the hook to monetize these images or lose money? They did so by enticing buyers with very liberal license terms, such as "unrestricted (use), unlimited (time)."  Thus, photographers (and later, newbie agencies that didn't understand history) misunderstood RF as implying these unrestricted usage terms. For a long time, RF really did mean "unrestricted."

But I rarely see such license terms anymore. Even the license terms used by today's agencies for their so-called RF images are often not as liberal as the original RF terms once were.

Today, the terms "RF" and "RM" are interpreted mostly by PHOTOGRAPHERS to mean that they will make more money with RM images than RF, even though those economics are not as predictable. My personal opinion is that the terms remain simply to attract (and direct) photographers towards certain business terms with the agency. Most buyers have no idea what they mean... nor do they care. They only care about the terms of use, which has nothing to do with RF or RM.

Selling Stock: it's about search rank, not price

Yesterday, I reposted an article I originally wrote in 2007, discussing the misconception that microstock pricing is what's driving down overall license fees.

I got a few emails that still challenged my assertion, and it appears I haven't emphasized strongly enough the most compelling arguments supporting this thesis.

All of my research supports the premise that the primary cost of licensing images is not the license fee, but the overhead associated with finding and acquiring the right image. The overhead and administration of a project that would involve photo licensing shows that the actual license fee ranks very low on the budget -- hence, low on the buyer's priority list. My 2007 surveys of buyers showed that.

If the person responsible for finding images for a project is paid $60/hr, and this person spends 2-3 more hours looking for a photo just to pay $1 vs. $50, this translates to paying someone $120-180, just to save $50. People who control budgets know that the license fee for photos is negligible to the total cost of production, even at the traditional stock photo rates. The bigger the project, and lower the proportion of the license fee for the image(s).

Those who sell images are dropping their prices because they're looking at their competition, not the buyer. Further, there is absolutely no evidence to show that sites that have lower prices sell more images. There is definitely a perception that there's a correlation, but that's because people are comparing apples to oranges. Getty sales vs iStock sales are not apples-to-apples because the two entities vary dramatically in search engine results (and other important factors). People talk about microstock sites more, and they link to them (in blogs, discussion forums) and the quantity of images on microstock sites is rapidly growing. So naturally, these sites get higher rankings in search results. Search engines don't rank sites because they have lower prices. They rank sites by size (content), links, and a black magic formula that is best described as "dispersion of discussion in and around the net." In short, microstock sites have more content and get more attention. Hence, better rankings, which translates to more traffic, which attracts more photographers to submit images to them, perpetuating the feedback loop.

In my 2007 survey, those who indicated they were aware of--and use microstock sites-- most don't go to them because the prices are lower; it's mostly because those sites ranked higher in search engine results, where the buyer starts.

Because search engine ranking drives traffic -- especially the untapped (and unaware) segment of the global economy that doesn't use stock agencies -- and because the greatest cost in photo acquisition is time, not the license fee, 90% of the time-savings is the image results the user gets on that initial search. If it takes the buyer to a stock agency site -- microstock or otherwise -- then the deal is nearly done. Price notwithstanding.

This is primarily why I have advocated for years that stock sites should focus their entire effort towards optimizing search engine rankings. While they could have done something about it in the past, the rise of social networks and the plethora of image-related websites and apps has made it impossible for agencies to rank highly on image-search rankings on their own. In today's market, they have no choice but to either partner with, or acquire/be-acquired-by a social-networking site.

The Getty<->Flickr combination is a very pragmatic example. Yahoo is circling the drain, and it needs to shed its non-performing assets and focus its attention on ... something. Whatever that is, it isn't Flickr, and there aren't a lot of buyers that would be interested in that asset, except for Getty or Corbis. The combined product would involve retooling Flickr to be far more socially active (to keep up with modern social networking trends), and to integrate licensing/acquisition into the user/social experience. Most importantly, to provide incentive programs for photo submitters to participate economically. (I've written a great deal about this in the past.)

Of course, perhaps Yahoo should just buy Getty. Facebook is getting into the game, which tends to lead one's eyes towards Google, but they are still struggling to play catch up in the social-networking arena, and their photo division is not run by someone with a disposition towards stock or an awareness of the economics of the photo industry. The company is more interested in building assets that support their advertising model. There's no evidence that "licensing" is on their radar--a pity because they would be on the forefront of the Web 3.0 economic model, where images would play a huge role. (See here.)

In the meantime, there's a $25B shadow economy in peer-to-peer photo licensing that's up for grabs. (See here.)

So, you ask, "how do you convince agencies of this?"
I've been trying since 1998.

(For fun, see this web archive of my site from 1999 discussing this topic.)

Creative Commons Effect on Photo Licensing

Julie Bernstein asked me the following question: "I am curious if your views on Creative Commons have changed since the four articles you published on this topic in '08."

Julie is referring to these articles (part1, p2, p3, p4) where I describe the CC as a great licensing method for almost all media types except photography.

In summary, what the CC has done is create a legally legitimate infrastructure for those who freely share copyrighted works. Before CC, such activity was technically an infringement, because the the publication of creative works requires consent of copyright holders. CC clears up that technicality, which is great. But it has inadvertently given people the impression that it has affected the licensing industry's pricing structures.

CC has not affected the greater licensing market (or prices), largely because of risk: CC has no centralized authority to assure that content is either submitted properly or used properly. Because it's so easy to game the system on either side of the photo (the supplier or the user can sue the other by luring them with a legally misleading scenario), the financial liability for anyone with a lot to lose is simply too high, especially given that traditional license fees are so minimal. So, the majority of image buyers simply stay away from CC.

Now, this is not to suggest there's something wrong with the CC model in principle. I'm a big advocate for it in all other contexts. Indeed, it was born out of the "free software" meme that was popular in the 1980s and 90s, when Gnu Public License (GPL) and other models were the precursors to the "open-source" model we still enjoy today. These are great innovations in licensing because they allow intellectual property to be used for the greater good, while also allowing for commercial use of those innovations.

But CC in the world of engineering is entirely different from photography. Engineering takes a considerable amount of time, resources and (usually) teamwork to produce anything of value that those in the open-source community would use. As such, the kind of content there is proportionally minimal, and each work is substantial and recognizable, making infringements quite easy to spot.

None of this is true in photography -- trillions of images are produced daily, it's impossible to track any given photo, or whether it is "legitimate" (either by the owner or the user).

So, sure, in a world of honest people that want to freely share their content in a peaceful corner of the image licensing market, CC is great. The CC market is growing, but the perception is only as a measurement of itself, not the total licensing market. An article on that topic can be found here:
http://www.danheller.com/blog/posts/total-size-of-licensing-market.html

Lastly, it's natural to ask, "If CC is so easy to game, why haven't we seen it?" The answer is because the market is so negligible. Economists often use crime data as a reality check on the economic activity they think they're aware of. The higher the crime rate, the more economic activity there is, and there's usually parity between that activity and the presumed size of a commodity's market. If there's little crime, the market size isn't big enough to warrant the effort. If CC were to genuinely gain momentum, it would attract those who would game the system for profit, which itself would have a cooling effect, bringing its popularity back down.

For the record, I've proposed that the best way to assuage people's risk concerns about CC is to use the "copyright registration" system. The CC foundation should have a submission system where those who want to submit images for CC licensing would bulk register those images to the copyright office. This gives them the right to file claims on behalf of the copyright owner, which is how major stock agencies like Getty work. Registered images are eligible for higher level of copyright protection, and there are federal penalties for fraudulent use. This means that users of CC images can be protected from invalid claims by those trying to game the system because this is built into the copyright act's provisions. Similarly, authors can be assured of CC compliance because non-compliant users could be subject to an infringement claim. Yes, you can sue someone for copyright infringement, even if the license fee were zero, because the infringement is another form of "breach of contract." Here, the user of a CC image agreed to the terms of CC by (for example) citing copyright ownership. Failing to do so is an infringement of that contract, and is therefore subject to the statutes provided by copyright law.

This would not only allow CC to have actual teeth, but the trust would go up as the risk comes down.

But such an infrastructure would be quite expensive to operate. That'd be a tall order just to create a system that brings the license fee for a commodity down only a few dollars, even if it is only to zero.

Getty and Flickr: Prophesies Coming True?

People have been emailing me copiously, asking for a statement in response to the new relationship between Getty and Flickr, where Flickr members and visitors can work with each other through a new program with Getty Images called “Request to License”. The details of this program are listed here. From that page:

When a prospective licensee sees an image marked for license, they can click on the link and be put in touch with a representative from Getty Images who will help handle details like permissions, releases and pricing. Once reviewed, the Getty Images editors will send you a FlickrMail to request to license your work, either for commercial or editorial usage. The decision to license is always yours.

Why are people asking me about this?

For years, I've been proposing that precisely this model be implemented. Most of my blog entries in 2007 and 2008 articulated this very model. The first was on Feb 13, 2007, in an article titled, "The future of photo sharing sites and agencies". There, I predicted the inevitable convergence between companies like Getty and Flickr:

I believe it will invariably happen that major photo agencies like Getty and Corbis can (and should) move into the consumer market. Consider what would happen if major stock agencies expanded their businesses by opening the flood gates and letting everyone in. By removing the barriers that require photographers to "submit images," and having a separate portion of their sites be entirely open, much like other photo-sharing sites are, they would give more options to buyers, and provide more opportunities (and greater incentive) for photographers to join at all levels. Getty owns iStockPhoto.com, which is a microstock agency that sells images for much less, but this is not a consumer-based, social networking style photo sharing site like flickr is.

The key here is in italics: microstock agencies are not social networking sites, they are therefore limited by both buyers are sellers than the social-networking sites. My premise for this logic is based on my years of research showing that 80% or more of licensed images is peer-to-peer, directly between buyers and photographers, not among agencies. You can read this research in the article, "The Size of the Photo Licensing Market"). The summary of that research is this basic truism: Most buyers find images on non-stock agency websites.

On Feb 18, 2007, I wrote how the photo-sharing and social-networking sites can capitalize on this opportunity in an article titled, "Two-Phased Approach to photo-sharing/licensing model". I said:

Phase One of this business will be where a photo-sharing site merely allows visitors to license images directly from the site. Phase Two will involve the distribution of the same photo assets to other sites, much the same way online ad sales are hosted (or "published") on other websites. ... For the sake of discussion, I'm going to assume that the approach ultimately adopted is the one I've suggested in the past: make it pure and simple by giving the user a toggle for setting whether his photos are (or aren't) permitted to be "sold".

And that's exactly what Getty and Flickr are doing now. Over four years later.

You may note that I said there was a two-phased approach. That second model will eventually become part of more photo-licensing business models. (In fact, it already exists, but among companies too small to get anyone's attention--partly because the technology and business models they've adopted do not properly understand and implement the true nature of photo licensing, copyright issues, and potential target markets. This is an aside for the moment; it may come up again when larger players eventually begin to consider the opportunities.)

Speaking of predictions, I remain steadfast in my opinion of the inevitability of what happens next:

In July, 2007, my blog post titled, "The Solution to Getty's Woes" explained how Getty can get out of its financial troubles by simply buying Flickr directly from Yahoo and using it as the main stock licensing engine. The article got into exceedingly detailed analysis of Getty's financial model (and troubles) combined with the explosion of available imagery on sites like Flickr that make this solution not only obvious, but inevitable.

On a directly related note, I called into question the life expectancy of the Creative Commons in this article (2008), where I again proposed that Flickr allow users the option of choosing between allowing their images available for free via CC, or to get income from their images. I said,

...it begs the question about whether enough people would choose the option to "make my images free"(CC) if it were 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 risks" and modestly priced images without such risks, 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.

Without getting too far afield, I have no qualms with the CC, per se. It's more about how simplistically it's been designed and deployed. It's just not sustainable in the real world business market. The problem is not the "license terms" and the structure of the legal contracts--those are all just fine. It's the fact that the system can be gamed so easily by both buyers and sellers, that it's too unreliable to be sustainable beyond a small handful of casual users (by comparison to the larger market of stock imagery). The true protections for both buyers and sellers is to leverage the copyright registration mechanism. That is, creative commons images that are also registered with the copyright office lowers the risk both both buyers and sellers, as explained in that article. Since no one is building copyright registration into their online business models, and the CC itself has a fundamental objection to the concept of copyright in the first place, the CC will be relegated to an historical footnote , bringing strength back to the for-fee licensing model. And which brings us back to why I'd always argued that Flickr should have enabled image licensing.

So, why is this all good for the photo licensing industry? I articulate this answer in the blog entry I wrote on March 15, 2007 in the article titled, "Photo-sharing-licensing sites leveling the playing field."

As more companies engage in the business of licensing images, photographers with credibility will gravitate to the sites that offer a better return on their money... In a way, this is how photo agencies started in the very beginning, only better: because photographers don't have to be "accepted," the playing field is much more level, and the market forces can be more free to let the money flow to those who really do merit the higher earnings (rather than at the whim of photo editors). The buyer, it turns out, is the best photo editor, and it will be pretty clear in short order which sites are hosting good, honest content.

I summarize with another excerpt from that article:

...the most basic, fundamental truism about photography remains: there are more people who have it as a hobby than as a profession, and the barrier to entry is low... the honeymoon period for Getty will end once photo-sharing sites become new outlets for photographers where the open market can decide their rates."

Might Picscout Ultimately Cause Yahoo to Acquire Getty?

I realize the title of this blog is rather provocative. But let me lead you through this.

It all starts with David Sanger's blog on picscout's new Image Registry and Image Exchange, which is the system that Picscout uses to index images and bring buyers and sellers together through third-party licensors. David makes insightful comments on three critical points.

First, his point #2:

Picscout aims to take a percent of sales, noting on their site: “ImageExchange acts as an online affiliate program, sharing image-licensing income between PicScout and licensors.” This will reduce the percent that goes to the photographer.

David is not the first to observe this, but it illustrates how the big picture is being missed. The premise begins with the fact that the universe of images users (some of whom are active buyers, but most of whom are not) use applications that produce documents (digital and print). Those applications are developed by third party Independent Software Vendors (ISVs), such as Adobe or Microsoft. If the applications that ISVs produce adopt the Picscout API to hook into the registry to identify images the user is using in his document, those users will not only be automatically notified they are using copyrighted images, but will also be given the opportunity to license them. This concept isn't far-fetched--exactly the same thing is done when users try to view movies or listen to songs on some devices.

However, because such a thing is not yet done for images, it has the potential to transform the stock licensing industry. If enough ISVs adopt the API and hook into the registry, a critical mass of users will be invariably recruited into the photo licensing economy. The more ISVs that adopt this API, the more applications will be using them, which casts a wider and wider net of users... who themselves become image buyers.

Here's the hitch: those ISVs will not adopt the API unless they have a stake in the game. That is, a cut of the license revenue. Unless someone has another carrot to wave in front of those ISVs, that's the only way to get them to participate in the program. If ISVs don't adopt the API, this whole discussion is moot. No one uses the registry. Game Over.

Therefore, the game is to capture the ISVs. And the only financial incentive they can possibly have is to participate in the licensing model--that is, a rev-share. This has the even greater advantage of giving the ISV even more incentive to get their own users to license images. The more they license, the more money the ISV makes. The ISVs will not just promote these features, but they may make it pretty darn difficult for users to avoid these features.

Imagine what Adobe would do if they had the ability to get a cut of a $10B economy if they just added a feature into InDesign that assured that the photos being used in any given document was properly licensed.... much the same way an iPod assures that the movie it's about to play has been purchased.

This is the same model I've described in my article, The Economics of Migrating from Web 2.0 to Web 3.0: convert the vast majority of image users into image buyers, and sales volumes go way up.

So, that David observes that photographers' percentage of royalty goes down is a true statement, but one that clearly misses the big picture. Obviously the ISV rev-sharing cuts the pie into smaller slices, but a smaller slice of a much larger pie.

David then makes another keen observation in point #7 about Picscout's underlying technology:

Evaluating an entire page of thumbnails is time-consuming. Each thumbnail must be downloaded and analyzed by the PicScout servers before returning index comparison results...

Though David only cites the Google search as an example of how users expect "speed," this is only the tip of the iceberg. Picscout's web browser plug-in that examines google searches is merely a prototype to demonstrate how the API works. Once again, the real goal is to capture ISVs.

But David's observation is more prescient than he may have thought, for performance is probably even more important than rev-sharing by ISVs. If their apps degrade in performance by using the Picscout API, they won't use it, irrespective of rev-share.

The technology Picscout has introduced is clearly first-stage prototypes to introduce the business model and be the first on the map. Yet, it's also Picscout's Achilles Heel, as there is a race about to ensue.

Let's not be naive: Picscout is not the only company on this track. Image-recognition is a science that's akin to text search: there are many ways to do it--some better than others--but it only needs to perform to minimal threshold for the business model to succeed. Many other factors dictate success or failure. Sure, though Picscout may have superior image-recognition algorithms, that part isn't the crowned jewels. Indeed, there are many companies with image-recognition algorithms, Google being one of them.

The real challenge is to build a network protocol that can communicate image information between a client and a server as quickly as possible, using as little network bandwidth as possible. Then, this mechanism needs to scale up to service huge volumes of requests from huge numbers of applications on the net. Picscout may be the first to introduce the proof-of-concept and a prototype, but the real race is on the back-end... as David pointed out.

On the surface, this would seem difficult -- and it is -- but it's hardly new. All large-scale social-network sites do this on a regular basis, from twitter to facebook to Flickr. Though cloud-computing is mature, the real barrier to entry here is the costly capital investment necessary to run such a service. There are many players in the field that already have this infrastructure. By comparison, Picscout would have a harder time ramping up to that level of computing resources than it would for a larger company to find some sort of image-recognition technology (if they don't already have one).

For now, the game is Picscout's to lose, since they're first. But "first" players often find themselves in catch-up soon thereafter. If they even moderately demonstrate viability in the concept, much larger players (such as photo-sharing sites) who have such resources already will be quick to swoop in.

Lastly, David notes in his point #3:

If buyers find it easier to find images through web search they will move away from distributor sites for search, and only use the distributor site for the final licensing.

Yes. Exactly. But that's nothing new. It's been that way since about 2002 now, a fact that I've been pounding on since that time: The vast number of licensed images are done on a peer-to-peer basis directly between buyers and photographers. Stock agencies have suffered because they've missed this point, and have since struggled in trying to figure out how to fight their way out of the paper bag.

But that struggle will end without their having to do much about it. With the combination of image-recognition and web-crawling, the emerging business model Picscout is attempting is now a Fait accompli. That is, David is correct to say that stock agencies of today will become nothing more than hosting sites and clearing houses that supply inventory to other middle-man sites (like Picscout) that do the real job of pairing buyers and sellers.

But is this really a bad thing? He says it in a way that suggests that agencies somehow preserve stock prices. Let's not forget that if ISVs and others realize there's money to be made, they don't want to under-price inventory too. If you want to preserve price stability, convert the social-networks from photo-sharing into photo-licensing businesses.

I've nothing against agencies, but their future will require them to do two things they never did before--in fact, that they avoided: rank well in search engines (so that end-users are more likely to find content in the first place), and attract as much content as possible. That is, stop being editors. Let any and all images in, and let the natural ranking abilities of search engines and social-networks be the real editors. To date, stock agencies have neither sufficient content volume or web-ranking in search results, nor do they employ social-network aspects to their sites to attract users in high volumes. (Again, their head was in the sand for too long.)

So the question is, who can do this? Answer: Photo-sharing social networks.

Back in 2008, I posted an article titled, Stock Photography, the Consumer, and the Future that forecasts this very phenomenon. Once the realization that there's lots of money to be made by creating a streamlined and automated image-licensing mechanism, the sleeping giants of the photo-sharing social networks will awaken and bulldoze over the traditional stock agencies in ways that no one would have believed.

Indeed, I wrote in January, 2008 in an article titled, Pulling the Flickr sword out of the Yahoo stone:

Flickr is one of the very few photo-asset powerhouses on the web that could monetize its content in ways that would exceed even modest expectations.

In fact, I also wrote in an article titled, The Solution to Getty's Woes that Getty should acquire Flickr for this very reason.

But times have changed considerably since then -- Getty has shrunk in size, and Yahoo! has recovered handsomely. Getty could never acquire Flickr now... but if this whole business model of using image-recognition as a vehicle for licensing images shows promise, then I wouldn't be surprised if Yahoo! starts casting devious stares towards Getty.

Hmmmm......

Picscout's IRC - commenting on other people's comments

When Picscout announced its new Index Registry Connection (IRC), the blogosophere has been abuzz, and with it, personal emails directly to me requesting public commentary.

Though I'm no longer affiliated with Picscout (past VP of marketing), I feel compelled to chime in on the subject. However, I obviously have information and insight that I'm not at liberty to discuss. This is a bit frustrating because some of it would help dispel some of the myths and misunderstandings that many people have about the IRC. However, there are a few things I can say that will merely help steer people in the right direction, at least insofar as their overall understanding of the stock photo market and the IRC's relationship to that. A great deal of this is based on blogs I've posted over the years, all of which pre-dated anything Picscout is doing today.

What we know, and what Picscout has announced, is that they are in the first stages of a technology that will someday be used as the foundation for new business models yet to be discussed. Those who've expressed concern about the IRC at this point have done so based on rather erratic speculation. According to Picscout, the IRC is just an index. It's currently being populated, and they are building an API for application developers to attach to the index to get information about images. Yes, Picscout has made a preliminary prototype that uses this API -- the firefox plug-in -- but one can assume that more applications will have access to that API at some point in the future.

But this hasn't caused some unfair and somewhat simplistic criticism of the browser plug-in. It has been ridiculed as a "bad way to reach image buyers" and that "no one really wants to add a plug-in just to see who owns an image." True, but Picscout didn't characterize it that way. It's just a prototype sample to demonstrate how the IRC can work. One can reasonably assume that, over time, many third-party applications that use images -- especially those used by image buyers -- could incorporate this API as well. There's nothing secret here; this is precisely why technology companies build APIs.

There are also those who've critiqued the basic premise of an IRC. That's like criticizing Google and Yahoo for creating technology that "scans and indexes the web." As image-recognition algorithms evolve, it's natural to index images and track on the web. That there may also be an added element that points to a "licensing agent" for those images not a "good or bad" thing--it's just something people can use. It can become better or worse depending on many other factors.

For example, similar models are already in use. All major media publishers (music, film, video, and news organizations) employ some sort of recognition technology to identify their content, which is then used to track their copyrighted content online. That some of them have been used in unpopular ways is true, but it's simplistic to throw the baby out with the bath water. There are also benefits to those mechanisms; they enable device-makers and others in the supply chain to create popular and useful tools to play such content on devices ranging from MP3 players to TV set-top boxes. The ease and convenience of instant-viewing of movies, songs and other content is a direct byproduct of such technologies applied in non-combative ways.

The difference with PicScout's IRC is merely that Picscout doesn't "own" the content they crawl and index, as opposed to media publishers that only do their own content.

But there's another important difference that the IRC does that other publishers don't do -- it provides for a new pathway within the communication channel for a potential "user" to legitimately acquire arbitrary content. I spoke of the inevitability of this sort of thing back in 2007 and 2008 when I outlined business models that would evolve as image-recognition engines such as Picscout's and Idee's grew powerful enough. In fact, my entire article, The Economics of Migrating from Web 2.0 to Web 3.0, predicted precisely the kind of IRC model that Picscout has now announced.

It's true that Picscout hasn't yet announced details of its intended business models, but just like the inevitability of the IRC in the first place, there's a very limited number of business options available, each of which are similarly predictable. (I identified a variety of such models in the article above.) The real question before us is not what Picscout might do, but how well they do it. Choosing the right partners, technology back-end, marketing, and competitive differentiation will all be instrumental in their success. After all, both Google and Yahoo attempted the same technology and business models, but only one succeeded.

Another concern I've seen raised by some industry watchers is how the IRC will affect stock pricing. John Harrington's post was one of several that expressed concern over the inclusion of CC (Creative Commons) images into the index. (CC attribution allows publishers to use images for free, in exchange for credit attribution). The concern that CC images are "free" and will thereby affect market prices is mis-attributed. I've written extensively about the myths of how "free" affects pricing--you can read them in the "Pricing and Profit" section of my blog. Those articles basically highlight common and repeating events that show how open-market pricing mechanisms has a tendency to optimize price points. Don't get me wrong--there is a concern about CC images, but it's not because CC images are free.

The problem with CC images is more tied to the legitimacy of the images in the first place. This, too is something I've written about a lot before, but I can summarize the basic problem this way:

The CC is used mostly by consumers who neither understand or care one bit about the legal complexity and liability that can come from publishing CC-attributed images.

It's also the case that those who CC-attribute their images don't believe their images would ever be licensed. Lastly, CC photographers don't think about it--they just assign CC attribution with indifference, much the same way one clicks on the Agree button on license agreements for new software purchases.

It's important to recognize the mindset of people who currently use CC-attribution because it forecasts how their behaviors might change under different market conditions. And that's where the IRC comes in. If the IRC shows that people can monetize their images in ways that were previously unavailable to them, they wouldn't be so indifferent to CC. In other words, CC photographers do not universally share the political focus and determination that Lawrence Lessig has. They are not an army of political adversaries that have it out to dispense with copyright. Most CC photographers are largely unaware that they're part of someone else's agenda. The simple smell of money--of easily accessible money--will convert most CC users into regular photographer-contributors.

Because of this, I think it'd be good for Picscout--and good for photo pricing--to be inclusive of the CC community. But there's another, entirely different problem with CC that negates this advantage... for now.

The problem is, where there's profit, there's also greater incentive to game the system. As such, CC presents a significant risk. The misunderstanding and indifference by the consumer public about CC is what allows bad actors to step in. You can read about that in more detail here. The game is to give a CC attribution, and then deny that "you" are the one who gave it. Either the photographer or the user of the image can do this dishonest act. An arbitrating judge would never discern between a lying photographer looking to swindle the publisher, or a lying publisher, looking to swindle the photographer. In the event of a dispute, the dishonest player usually is the one who wins because he knows the game.

Therefore, users of CC images have to trust that the CC attribution on the images they publish is legitimate, and that's not very practical. Combine the effects of these bad actors with the social phenomenon that consumers are in the habit of attributing the CC license to any image they touch--including those they do not own--the result is a time-bomb waiting to explode: when all those mis-attributed images are used by naive publishers seeking to use "free images" through the the IRC, the lawsuits start flying.

It's not as though "most" CC images are mis-attributed. The problem is that it's an unknown number. And the risk for Picscout is that even a small number can result in a PR nightmare. If a disproportionate number of images in its index are CC-attributed, it'd be like being in a dark room full of thieves when the lights go on: you not only can see what's been stolen from you, but who stole them. If most of the goods are CC images, people learn to avoid the room if it attracts thieves. Buyers would do more than just withdraw from using CC images, they'd avoid Picscout's IRC entirely.

The same would not be said of "traditional" infringements--in fact, quite the opposite. If the large majority of the IRC index contains validated works from credible suppliers, the IRC's reputation not only goes up for the buyer, but it would attract more business partners. Here, infringement claims would be regarded as proof and legitimacy of the system.

The issue of CC credibility points to another important factor in IRC's success: managing copyright in general. First, I'll dispel the silly notion that the IRC can be used as a vehicle for easier and more frequent infringements. The IRC is not a search engine, and infringers wouldn't use the IRC if their intent is to infringe. The IRC is just used to identify information about images a human finds through other means. That is, you already have the image--you just want to know how to properly license it.

The legitimate question is whether the IRC actually helps increase licensing. And this gets to a critical point people have asked that Picscout has yet to answer: Will infringements be pursued? As a general point of interest for industry watchers, protection of copyright is one of the most critical cornerstones of copyright economics. There's a direct relationship between copyright enforcement and compliance, which itself is due to the direct relationship between copyright compliance and social norms.

In other words, most copyright infringements are because certain behaviors are regarded socially acceptable--the norm. Infringements of photography are not usually because people want to save money through stealing. To understand the economic effects of this, understand that music copyright compliance trends finally turned positive when music labels struck deals with music companies to create ways for consumers to buy music more easily. And that wouldn't have happened had the music labels not been aggressive in pursuing infringers. I address that issue thoroughly in my article, Proposal for Privatizing the Copyright Registration Process, where I write:

...there's a lesson in behavioral economics: Consumers don't fear copyright infringement consequences, companies do. Markets don't grow by educating individuals about copyright; compliance is achieved--and business grows--by creating convenient and automated mechanisms that make both access to and use of content easier. The recent announcement by Apple and record companies to remove copy protection mechanisms in songs further reflects this economic reality.

That cornerstone of economic viability--pursuing infringements--must be real and present in some form, or there is no economic infrastructure to sustain a licensing business model. What makes this problem hard for photography is that, unlike music, which is protected by music companies, the common photographer does not attempt to protect his image copyrights. Worse, photo agencies do not step in to protect images the way music companies do in any significant manner. Even large stock agencies are puppies compared to the pit-bulls of the music industry when it comes to protecting copyrights. And photo industry trade associations literally do nothing--this, compared to the recording industry trade associations that vigorously pursue infringements.

Photography infringers steal because there is no social norm dictating otherwise. Most are totally unaware that they are doing something wrong. The IRC can lead a potential buyer to a licensing agent, but unless that agent is also prepared to protect that asset, social norms won't change. And people don't build new technologies to support licensing mechanisms unless they know social behaviors will participate in that system.

While the IRC can be used as an infringement tracker, it's unknown as to who is going to pursue infringements. And that's the elephant in the middle of the room. If the culture of stealing images doesn't change, too few people will use the IRC sufficiently enough to justify investment in its growth or participation by third parties that have to choose whether to invest time, money and resources into supporting the Picscout API.

By contrast, if someone does pursue these licensing/infringement conditions, it gives incentive throughout the entire supply chain to participate. Buyers would be more diligent about licensing images to avoid infringement suits, causing more photographers to use the system to track their images, causing more agencies to get more images into the system to increase the rate of licensing, and more third party applications will build IRC access tools into their programs.

In summary, all the critiques of the IRC that I've read are premature. But that doesn't mean there aren't serious questions and challenges ahead.

Photo Agencies and The Stock Industry: a Matter of Proportion

In my blog post, "There are Lies, Damn Lies, and Statistics", a series of email replies inspired me to post a follow-up. I'll get to them at the end, but first, a recap:

In that article, I mentioned how a Shutterstock survey focused on a small, select group of traditional image buyers to gauge their purchase expectations over the next year. I went on to say that it is the result of surveys like this (and others) that most stock photo analysts draw the wrong conclusions about the nature of the broader stock photo marketplace, which itself leads to a trickle-down effect of misinformation throughout the industry. In this case, the Shutterstock survey lead many to conclude that the industry is growing. And this perpetuates another misperception that agencies represent the lion's share of sales and revenue, which itself leads to the misperception that making money in stock requires joining an agency.

Each misperception leads to another, and another, and another, until finally, the industry is full of chaos and confusion, myth, and suspicion.

For now, I want to clarify that, just because it's easy to see how most analysts misinterpret information, it doesn't necessarily mean that it's easy to know how to do it right.

A primary example of this can be found in a July 18 article in the New York Times business section, titled, A Matter of Opinion?. The issue is how credit rating agencies were giving high marks to the very companies that were ultimately responsible for the credit crisis that lead to our current economic meltdown. After facts were uncovered, many feel these credit agencies should have known all along that banks and other institutions were engaged in speculative and complex financial instruments that would lead to this.

And that's how I feel about those who cover the photography industry. The evidence is so overwhelming that the predominant view of the stock photo industry is so wrong, that it is flatly irresponsible of the press and analysts to perpetuate that view. It's also important to point out that this is not the company's fault. Their survey and their data is just fine -- their goal was to illustrate other points more german to their businesses. The problem rests entirely within the press and blogosophere who are inappropriately using that survey to support (and perpetuate) incorrect conclusions about the industry at large.

First and foremost: The stock photo industry does not revolve around stock photo agencies. Though there are no scientifically viable surveys that show the total size of the market -- and therefore, the proportion that agencies may represent -- there is a great deal of asymmetric information (indirect data gathered from independent sources) to support the premise that agencies' role is minimal.

I've written many articles that cite multiple data sources that suggest that most stock imagery is licensed on a peer-to-peer basis--directly from photographers. Even though many of these individuals do tiny amounts of licensing annually for themselves, it's their collective economic activity that has far more gravitational pull on the industry than the entirety of stock photo agencies combined. (They are what my books call the "dark matter" of the photo industry: you don't see them, but they are there, and they account for over 80% of the stock photo universe.)

Once taken into account in discussing and analyzing the nature of the stock photo industry, a great many assumptions and other factors are instantly called into question. For one, the effects of pricing and other actions taken by agencies. If, even for the sake of argument, one assumes they are not the center of the universe, but rather, involuntarily pulled by everyone else, how they are presented and covered would not just change industry perceptions, but it could have a trickle-up effect, putting more pressure on industry executives to make better, more economically viable decisions that lead to industry growth.

As for the stock agencies themselves, I have no qualms about how they conduct their businesses, per se. True, I think they leave a lot of money on the table with their pricing, and I think they miss out on a great deal of consumer opportunities, but I don't think this harms the market at all--again, they do not "set trends", they are inadvertent followers of larger forces. I also understand well that running a profitable business is difficult, and growth is often fraught with risk. The graveyard of companies that tried to migrate to a consumer-oriented business is crowded.

Nor do I have an issue with how they market themselves. There was absolutely nothing wrong with the Shutterstock survey that I alluded to in my prior article. Shutterstock's business is to sell stock imagery, and their survey happened to focus on a particular market segment that they felt was their primary buyer base. That this segment of buyers (narrow, though it may have been) happened to show certain behaviors that also happens to underscore Shutterstock's future prospects shows that Shutterstock has a bright future (at least for the short term).

Also, the PR agency that helped promote the message, Morton PR, was particularly honest, insightful and articulate, not just about the survey itself, but in its own recognition that the survey was not (and did not intend to be) reflective of the industry at large. Not every survey is designed for that purpose, and Morton was uncharacteristically open about this, as compared to other PR firms that have contacted me as representatives of other stock agencies.

I also happened to point out that iStockphoto also had a banner year, and is showing signs of improvement for next year as well. This fact being anecdotally supported by a comment from Lee Torrens at microstockdiaries.com on his own bump in sales, despite the fact that he hasn't increased his submissions to any stock agencies.

So, if that data isn't representative of the entire market, what kind of conclusions can we learn about industry trends? And what data do we use to learn this information?

In the spirit of setting expectations correctly, I can address these questions by proxy: my replies to the emails I get on this subject.

First, there's the most common question: "How does a photographer succeed at selling stock if not through agencies?"

Begin by dispensing of the premise that agencies are the de facto channel for stock photo purchases. You can (and should) sell directly yourself, irrespective if whether you also sell through agencies.

As an added note: I strongly discourage anyone from signing an "exclusive" arrangement with an agency that did not reciprocate by prepaying minimum royalties. After all, this is standard boilerplate contract language for book publishing. Why allow a stock photo agency better rights than a book publisher?

Once you take out the exclusivity clause, you can and should sell your images through any and all channels you can. Including--and especially--your own website.

Selling your own stock is easier now than it ever has. Many applications allow you to build your own stock site, that even the most technically squeamish can produce. It's beyond the scope of discussion to address that; I talk about it more in length in this article, which also happens to be in my book on building a photo career.

The barrier to success in stock photography is less technology as it is psychology. Most don't think it's possible (the "agency" fallacy), or they just don't want to put the time and resources into it. There's also a misperception of time: that sales should come right away. Or that they'd come sooner with an agency. No -- It takes time for your stock images to derive revenue, regardless of where they are for sale. Yes, the revenue curves are different between a personal site and an agency site, but "different" isn't necessarily better. After one year, you may get more revenue from an agency site than yours, but over five years, you're sure to get more from your own site. This is usually because you will charge more on your site (because buyers are more willing to pay higher prices--a factor that most agencies don't really understand yet), you will keep more of the revenues (in fact, all of your own revenues), and your own site will likely get more traffic to your pictures than the agency's site will.

The assumption that the agency is going to do better for you and every other contributor is naive. There's going to be an uneven distribution of traffic to contributors on agency sites, and there's a 90% chance you're going to be on the short-end of that stick.

Which leads to next question I get: "It just doesn't seem to me to be that smart to be in a situation where you give away 80 to 90% of your profit. I want to create something where I keep 80 to 90% of the profit."

Stock agencies get 90% of the profit because they're doing 90% of the work. If all you do is take pictures and upload them, then all you deserve is 10% (IMHO). The value of stock photography is not the photo. It's getting it sold. If you go to the effort of creating your own website, generating traffic, building a buyer base, then you too can earn 90% of the profit (the 10% you don't get goes into your cost of setting it all up). I talk about that in my two articles on stock agencies, here and here.

This next email question represents another misimpression about stock sales: "...discussions among a number of us who primarily do landscape, scenic, wildlife photography [...] lead us to think that there is no significant stock market for this type of work. What are your thoughts?"

Most stock photo sales are done in vast, wide, disparate and unstructured transactions around the world. There actually is a very big market for landscapes and scenics and wildlife photos, but there are also billions of such images from millions of photographers too. Even bad photos sell. The problem isn't that there isn't a market--it's getting noticed among the crowd. This leads to two points, one of which I've already made: getting noticed and ranked is a function of building your own personal site and personal presence on the internet.

The second point is that stock photography should not be regarded as a vehicle for generating lots of money with little work.

Stock photography touches many people as either a buyer or seller of a photo. So much so that it is so thinly distributed among people around the world, it's fool-hearty for an individual to approach it with high expectations.

So, what does all this say about selling stock photography as a form of personal income?

For so long as the industry remains chaotic and unmanaged by any central body, stock photography will also be unstructured. There will be little innovation that helps sort, rank and distribute photos based on merit--it'll remain as it is now: arbitrary. And just as you should not rely on buying lottery tickets to sustain an income, neither should you rely on on stock imagery when it is so highly subject to sales channels that are diffuse and arbitrary.

In this day and age, stock falls into Truism #4 of my list of The Five Truism about having a Photography Business, which I originally wrote in 1998. Truism #4 says Diversify Your Business. Only a very few who truly know and perfect the stock photo marketplace should do nothing but stock. For everyone else, you don't "succeed" at stock so much as you use your existing imagery from other sources to augment your income.

Most who sell stock -- even well -- do it as fun way to earn a bit more from their hobby or as a lifestyle business. That's how it was for me for well over ten years of my photo career. And as I am more into consulting now, it's that way for me again.

In closing, I will summarize by quoting my last blog:

Turning a blind eye to the rest of the stock photo universe affects decisions about where to put marketing dollars, where to do research into buyer behaviors, pricing, and business development. If it were generally accepted that the market were larger, agencies could form partnerships with other media licensing agents, social groups and legal networks that reach that larger market.

A Proposal for the Creative Commons

The optimist says, "We live in the best of all worlds."
The pessimist says, "Yeah, I know."

When it comes to the Creative Commons and photography, it's no surprise that the reactions to my blog entries on the subject seems to come from extremists one either one side or the other. Their common misunderstanding is that I feel the Creative Commons itself is flawed. True, I've stated that because photography is a common, everyday thing that it is a poor fit for the CC. But this is the pessimistic viewpoint of a more neutral reality of my message: that it's the byproduct of how CC is assigned to photos, and how people generally acquire CC photos that creates most of its problems.

In this posting, I am going to present the "optimist" perspective of the exact same underlying premise, but with a twist: a proposal for a framework for how risk conditions for both sides of a CC-licensed work can be minimized. This is a framework, mind you--one that has its flaws like any other--but at least it presents an approach that plugs the most egregious holes in how CC is applied to photos, and how people pick up photos for use.

This simple scenario illustrates the problem at hand:

You're a judge. In front of you are two parties: a photographer and a company. The photographer claims that the company infringed upon his copyright by placing his photo on their web site without his permission. The company states that the photo was marked as CC-attribution on Flickr, and they complied with its terms precisely. The photographer counters that he never made the image available for CC-licensing.

As the judge, you have to determine three potential explanations for how the photo got on Flickr and was assigned the CC license:

1. Did the photographer lie so as to collect the statutory damages?
2. Did the company lie so as to get free use of the image?
3. Or are both parties telling the truth, and someone else did it?

In copyrights infringement claims, the legal process starts with the indisputable facts: (1) the photo is owned by the photographer, and (2) the defendant has used it. Normally, it's at this point that the onus is on the defendant to prove that they properly acquired the photo legally from the photographer (or his assigns, like a stock photo agency). Unless they can, they are liable for infringement. Though they can claim it had a CC-license, that part is irrelevant unless and until it is established that the photographer assigned that license to it. One of the problems with the current use of the CC is that, though the photographer may voluntarily assign the CC license to it, it's impossible to differentiate that from a fraudulent assignment, which is why all of this is being discussed. But unless and until such a case can be shown or volunteered, it remains the defense's responsibility to present proof of permission to use the photo.

In the above scenario, most judges would have a hard time finding a legal reason to rule in favor of the defense without such evidence or admission by the photographer, who may in fact be lying. Yet, even if a sympathetic judge were to see the possible ambiguity, there's the possibility that the company may be lying. And the worst part is that both sides could be telling the truth and end up paying the price together (because of the high costs of litigating) if it turned out that some third party caused all this.

While such conditions are always possible for any kind of copyrighted work, the CC worsens the situation because it provides all sides with more tools and opportunity to create these conditions than before the CC.

But again, the CC itself isn't the problem! It's that it is has no reliable infrastructure. Flickr allows anonymous users to attribute a CC license to any object at all, and that's the problem. And not just for CC and those on either side of the photo in the middle, but Flickr itself, as would be any other entity that also tried to enable CC-licensing.

Infringement claims are already going on, but if the number of such claims continues to rise, it isn't a stretch to find someone filing a claim against Flick for contributory infringement. For those not familiar, contributory infringement requires (1) knowledge of the infringing activity and (2) a material contribution (actual assistance or inducement) to the alleged piracy.

Note that the Digital Millenium Copyright Act (DMCA), which normally protects companies like Flickr (Yahoo) from direct copyright infringement because they merely host the photo on their site, it does not protect them from contributory infringement if the second part of its definition applies: that Flickr provides "actual assistance or inducement". My feeling is that Flickr's current presentation of offering users to apply CC licenses, while not fully disclosing its ramifications to either photographers or users of such photos, is both assistance and inducement, and thus, puts them at risk for contributory infringement.

Crafting a Solution
Back to optimism. Alleviating this problem is relatively simple in nature; it's the details of implementation that can get sticky. The solution is to have some kind of mechanism for identification. In the simplest case, Flickr could just act more responsibly by not allowing users to assign CC licenses to photos without at least one more step in identifying who the person is that's doing it. This very simple act can help to alleviate a chain reaction of bad things, thereby reducing some ambiguities around the photo. It also reduces some of the inadvertent CC-assignments, while also potentially giving some publishers a tad more confidence in where the image came from. Of course, none of this is foolproof, but this one step still helps quite a bit.

Though it would be a good stop-gap measure for Flickr to do this, it's not really a long-term solution, especially if more sites were to ever adopt CC-licensed photo hosting as Flickr does. That's where it becomes necessary to craft a more formalized solution. The trickiness comes in the balancing of the "effectiveness" dividend against the "implementation" costs.

In theory, the next step is to introduce a documented process of registering and authenticating users on both sides of the "transaction." While that sounds bureaucratic and scary, this is not hard, nor new to anyone that uses the internet. The question is really the degree in which the CC or its users wish to participate.

Why consider it? Because it gives publishers a little more assurance that the photo may belong to a particular party, just as it gives photographers access to information about who's using their images. And that's been the main problem that's caused all of this. Again, this isn't CC's fault, but it would certainly help if the CC itself provided tools for its affiliates to act more responsibly.

First, no one would ever be required to register themselves with the CC. It is used only as a vehicle for information that both content owners and licensees can use to give themselves an added level of assurance. A photo's user can have a step more confidence that the image is owned by a trackable person; and the photographer can potentially be notified when his image is used. When these come together, each party is more likely to act in compliance with the terms of any given CC license.

Note that when people register, they are issued a Creative Commons Identification Number, or CC-ID, which can be used wherever they post CC-licensed content. Users can always remain anonymous to the outside world, and even to the CC (except for an email address, which is as good as anonymous anyway), in which case, potential users of that person's content knows this ahead of time, which may give them reservations about using it due to risk.

Here are the basic levels of identity that may be associated with any given person:

1. Name and Email Verified
   Here, a registrant fills out the application and provides no more information than a name and an email address. This is the base case for each of the other registration forms.
   
   
2. Phone/Address Confirmation
   This level is a higher form of confirmation, which includes name, email phone and address. It is identical to the requirements of copyright registration with the US government.
   
   
3. Signature Verified
   This level is the highest form of confirmation because the registrant provides all the information noted above, but prints it out and physically sends it in for confirmation. (Fax submission is permitted for states whose laws recognized signatures on faxes.)

Note that only people and companies register, not the works they submit. And it is only done once, after which an ID is issued, which is used to assign to CC-license to creative works.

Not every level of verification has to be implemented. (It may be too cost prohibitive in the early stages to deal with postal-mail submissions.)

The registration process has one of three states: "application submitted", "pending", and one of the above "confirmations."

So, is this solution merely a matter of having a registration process? Not quite--there is one more thing left to address: register with whom?

It could be the Flickr and/or other sites that wish to participate in the Creative Commons endeavor implement their own registration system for content contributors and acquirors, but this leaves some very big holes as to the credibility of any given registrar. Sure, people can trust Flickr (can't they?) but you can't necessarily trust any site that claims to collect personal information for the purpose of letting you have a CC-ID. And besides, someone's got to arbitrate the IDs.

My proposal for dealing with this is for the CC to be the ultimate gathering agent and host for CC-ID applications. It doesn't necessarily have to be the exclusive agent that everyone goes to (which would disrupt a streamlined user experience on other sites), in which case it would do the following:

1. Provide a set of specifications and requirements for what information is to be collected for user registration, how it needs to store and maintain the information, and a set of protocols for passing such information between the CC and its affiliates.
2. Provide executable APIs in a variety of programming languages for reference site to implement the specifications.
3. Offer "registrar certifications" in which third party sites (like Flickr) would apply to use the API and to comply with the terms and conditions.
4. Provide a reference site in which users can register themselves if they don't want to use a third party site.

Any company that wishes to give users the ability to register themselves and their works with the CC would implement the specifications and apply for certification from the CC to become a registrar. Once granted, it can accept user registrations; once accepted and confirmed, the user would get a CC-ID, which would be attached to any CC-license that the user may wish to assign to his creative works. The CC would list this new website as a credentialed CC-client, who in turn displays the CC logo and/or other certification identification. Potential users can check the validity of the owner and the work as a safety check.

It goes without saying that the CC is a trusted entity, and all software and specifications would be open-source software, the internals of which would be available for inspection on any site that has CC certification. This assures all participants there isn't funny business going on by a certified registrar. (One more caveat for CC certification is that the site must also provide a user interface for visitors to register to be a CC creator, or link to the CC's own registration forms.)

If the CC were to act as a registration hub in the manner I just described, sites like Flickr would hardly need to do anything differently than what we see today. The only major difference is that the checkbox to attribute CC-licensing to a photo would not be available unless the user has a CC-ID. (And of course, the user would be offered the opportunity to apply for one.)

Now publishers have choices about the level of protection they need, and may choose to avoid any content whose creator has not yet been "verified." To protect themselves from frivolous claims of infringement, they would also register as users of images, and for each image they use, they would be issues an ID with a timestamp, like any other receipt.

And, by the way, this process applies to anything that can be licensed under the CC, not just photography. For example, YouTube and other sites that host user-contributed copyrighted content could also employ such mechanisms.

Caveats
Clearly, there is no way to physically attach a CC-ID with specific works, but this is no different than how CC is attached to works in the first place. Once a photo is copied from one place to another (or, in print, etc.), it has completely lost the fact that it was ever a CC-licensed image. Currently, the only way to identify whether a photo has a CC-license (and its CC-ID) is the hosting site(s) where the photographer posted them originally.

(I had considered including as part of the proposal that the Creative Commons also act as a hosting site for CC-licensable content to address this problem, but that would be too onerous for a non-profit to implement. Hosting only registrant info is enough, especially if it needs to hold the master key to the CC-IDs that are handed out to certified registrars.)

As I mentioned, this is merely a framework for initial discussion. It is not intended to be a foolproof vehicle for eliminating fraud; it is only intended to provide the mechanisms by which implementations can be made more or less "secure" over time. However, I do believe that even this minimal set of guidelines provides sufficient infrastructure for licensees and users to have more confidence in the system.

One could argue that it's still possible for the photographer or a publisher to create a forged entity with the intent of entrapping licensees (by the photographer), or getting away with free licensing (by the publisher), or even maliciousness pranksterism (by an internet troll), but the registration process is more formal and involves several steps, which slows down the process enough to minimizes the likelihood of fraud to far more manageable levels.

Long-term Effects
Continuing with my optimistic view of the world... I believe that if the CC had some built-in protections that registration can provide, it would not only make the system better trusted, but it could stimulate broader adoption. Why would anyone want to get into the business of offering free images? Massive amounts of content. And as everyone knows, content translates to traffic. And the more eyeballs that go to a site, the higher its "value" in terms of potential advertising and other revenue streams.

The pessimist might say that selling paid-for content with CC content degrades price perception. This is a fallacy. Price acceptance is a direct result of perception of value, and that perception is not due to the mere existence of lower-priced items, or even free ones. (I wrote a long article about that here.) It's the chaotic and unstructured way in which various price points are managed that keeps value-perceptions low. A CC model that has a better managed infrastructure for how it is implemented (providing it has such an infrastructure) keeps the wild part of "free" from negatively affecting its paid-for cousins.

There's also evidence to suggest that when "free" content is mixed with paid-for content, there is a higher chance for those who currently opt to give away content to think, "Gee, I could be paid instead of getting nothing for this photo." This would be more likely than someone thinking, "Gee, I'd rather get nothing for this picture than a check."

Here are even stronger arguments in favor of a controlled environment for "free" content.

1. The increased awareness of copyright issues. Because "free" is an inevitable part of every industry that deals with creative works, the CC could offer an enforceable infrastructure that has teeth, thereby making the previously simple and common act of "lifting" subject to more serious financial ramifications.
   
   
2. By institutionalizing free with a "mechanism," people will get used to the idea that there even exists a mechanism in the first place. This, in itself, is the first step towards getting many entities (content creators as well as users) to start to think about licensing.
   
   
3. If "free" content is made available with the caveat that it must be used in accordance with certain terms, or there would be swift and immediate financial consequences, it reinforces the notion that all content is protected by copyright, regardless of the price paid.

As the photo industry matures into a form that embraces the consumer (a phenomenon that I've always predicted to be an inevitability anyway), it begins a new era where there's now a justifiable impetus for participation and investment from a much broader community. CC is still currently too chaotic and risky for many people to seriously consider, not because of its set of licenses, but in how Flick--its only real advocate--supports it. By crafting a firm set of guidelines for how a CC-partner behaves and certifying those who are so compliant, the chaos turns into order, which attracts more participants. I've written before that the size of the photo licensing industry is closer to the $20B range, as opposed to the current $2B that most industry analysts think it is, and it could be that the CC acts as the catalyst that brings it out: it would pacify the wild-west aspect of the photo industry, which has been what's kept the smart money away.

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.