One of the most visited posts on this blog is my layman’s analysis of Fair Use considerations in US Copyright Law. If you liked that one, then buckle up… It’s time to revisit the tortuous and inconclusive aspects of copyrights in a new discussion focusing on Creative Commons licensing.
As always, I have to start by saying that I have no legal training, standing, or background (aside from a Business Law course in college that surprised me when I found it enjoyable). Don’t take anything I say as legal advice. I’m just fascinated by how hard it is for the average user to figure out whether he or she is operating legally.
I was spurred to look into the Creative Commons license when I saw a tweet from Tony Ramos (@TonyRamos – “The Presentationist”). He was helping to spread the word about a new stock photo library using a self-declared inclusive spectrum of gender models. This is a great addition to the most commonly used stock photo resources, which are overwhelmingly Euro-centric, White, and traditionally “Western Business Conservative.”
On the Broadly Gender Spectrum Collection website, guidelines say that all images are made available under the terms of the Creative Commons license. The website points to only two main restrictions… “you may not create derivative work from the images or use the images for commercial purposes.”
The Creative Commons license is now widely used by content creators who want to make their work available, but not lose potential value from it. All the legal jargon is standardized and worked out so that each supplier doesn’t need a team of lawyers to craft their own version.
In the version of the license quoted by Broadly, users must give attribution to the original content creator, and may not use it to create derivative material. That effectively means you can’t do something like use Photoshop to change a model’s hair color, save the picture, and call it your own. In a music sense, you can’t overlay a new track on top of the source track and call the new piece your own. But it does not stop you from creating presentations incorporating the stock photographs.
As promised in this post’s title, the tricky use restriction is in figuring out whether your use of the material is “for commercial purposes.” This simple phrase has been the source of contention and discussion for well over a decade.
The Creative Commons website attempts a three-paragraph clarification of intent (wait for the site to load… It’s on the world’s slowest web server). It says the purpose of the phrase is to prohibit uses that are “primarily intended for or directed toward commercial advantage or monetary compensation.”
So if you record your presentation, place it online, and charge people to view it – uh uh… Your primary intention is to get monetary compensation.
If you build a sales presentation with a call to action at the end asking your audience to place an order for something, I’d say that counts as trying to get a commercial advantage and intended to get monetary compensation.
Interestingly, the Creative Commons folk make a clear statement that the phrase applies to the individual use case in which the material is included. It is NOT dependent on the type of user. So a school, community organization, or non-profit association can be just as guilty of creating a commercial work as a business enterprise. If you have to pay to see it, or if the work is primarily created to stimulate an exchange of money, that’s a prohibited use case.
Now we come to the tricky part. What if you get asked to give a presentation at a conference, trade show, or public gathering? Your topic might be purely educational and altruistic. But are you getting a speaker’s fee? Do people have to pay to attend the event overall? In those cases, even though your topic is educational and the presentation does not urge viewers to exchange further money, can the presentation be seen as part of a commercial venture? Even if no money changes hands at all, can the promotional value for the presenter (which could manifest itself later and indirectly) be deemed a commercial advantage?
It turns out there is no clear-cut answer. You probably have an opinion and are even now yelling it out as you read this. But as obvious as it seems to you, there is someone out there with the opposite viewpoint.
Back in 2009, the Creative Commons Corporation employed Netpop Research to conduct an extensive study on opinions about this specific issue. The entire study was designed to elicit a consensus on what exactly determines a “commercial” versus “noncommercial” work under the terms of the standard license agreement. The research team started with an examination of US Copyright Law and found that it gave no useful definitions, even though it uses the same terminology.
Around 1000 users of source materials and several thousand creators of such materials were asked to fill out an online survey. A smaller subset was invited to participate in physical presence focus groups.
The researchers found differences in interpretation not just between individuals, but between people belonging to different use-case groups. For instance, internet technology professionals tended to be more liberal in their interpretation of noncommercial than educators or art professionals. In a summary of the findings, the report authors wrote that “no participant could provide a definition of noncommercial use that worked for everyone in their particular group.”
Later, the report emphasized this same point: “Perceptions of the many use cases measured in this study suggests there is more uncertainty than clarity around whether uses of online content are commercial or noncommercial in nature.”
After skimming 141 pages of the report’s Word document and looking at 119 additional PowerPoint slides with graphs of the survey responses, I’m no nearer a definitive answer. For something you are implicitly agreeing to, with legal ramifications, by the mere use of a CC-licensed work, you have no idea whether you would win or lose in a legal battle or arbitration.
I would guess that the ambiguity in definition would make it hard to successfully prosecute and claim damages in a “fringe case” like the ones I called out as examples. The remedy in most cases would likely be a cease and desist letter. Given the limited resources of both creators and users of stock photography likely to be classified under a CC license, it’s probably not worth the financial risk of hiring lawyers and going to court. It would be a veritable coin toss on who would win or lose the case.
As always, you can avoid the entire issue if you use your own self-created photographs and illustrations, or explicitly license work for commercial use from a professional stock photography site. If you think you might be in a commercial use situation and still want to use a photo from the Broadly Gender Spectrum Collection, their “Guidelines” page gives an email address you can write to with licensing questions.
I sure do wish this was more straightforward. I can’t even figure out whether I would be legally allowed to attach one of those Broadly photos to this blog post… After all, even though the blog is free and there is no commerce being promoted in the post, the blog is associated with my commercial Webinar Success business and indirectly brings awareness to it, which could result in indirect commercial advantage. Sigh…