Creative Commons, Commercial Use and Gray Areas

Photo: Duchamp

I'm about as big of an advocate of the use of Creative Commons licenses for my creative work as you'll find. Nearly everything I make online is licensed under either the most permissive of the Creative Commons licenses (for things like articles, photos, documents, etc.) or one of the most permissive software licenses (for code and software), like the BSD license. That enthusiasm with a shared pool of resource led to my recent Photos from the Commons project and really drives much of my online activity. There has, however, been a longstanding problem with Creative Commons licenses that is probably going to get worse before it gets better. This problem exists on one of the axes on which Creative Commons helps people apply copyright license control. Those axes are:

• Attribution. If you republish, repurpose or create something from my work, you can't claim it as your own. My name needs to be attached. All of the licenses include this protection.
• Keeping the work free. The ShareAlike axis determines whether any changes you make to my work must also be licensed in the same way. This is often called a "viral" nature in license like the GPL and works similarly in Creative Commons.
• Commercial use. This is where things go from nice and black/white to a nasty shade of muddy gray.

That tricky axis of commercial use is specifically why I am steering entirely clear of any photo that includes a NonCommercial clause for the photos project. The problem, articulated in a much better way than I would do here, is that no one can really agree on what exactly *constitutes* commercial use. That can lead to really nasty confrontations that I want no part in. Adding to the confusion is the fact that for photos, there's an additional dimension wrapped up in the commercial use that could actually get messed up even if the use is non-commercial. The actual reproduction of a photo is covered by copyright. If you wanted to make prints, posters, etc. you needed a copyright license. However, if your chosen photo contains recognizable people (and sometimes inanimate objects as well), and you're using it as part of packaging or advertising something else, you also need a model release. This is illustrated by an episode of Friends (which is scary to realize is now nearly 15 years old) where Joey had a photo taken only to discover it on a billboard with a caption along the lines of "This man doesn't even know he's got herpes". That issue has caught a few businesses using Creative Commons photos for advertisements, even though the photos in question weren't restricted from commercial use. Fundamentally, these are the kinds of problems where rapid changes in how the law works along with a massive increase in the number of people now affected collide. Unfortunately, changes like automatic copyright and extensions with no registration, while partly intended to handle the influx of work under copyright without additional staff at the copyright office actually amplified the problem by creating enormous piles of copyrighted works by people who have no idea how copyright works. Alas, I'm certain it will get much, much worse before it starts to get better.