Why Pay When The Wiki Is Free?

November 24, 2009 8:16 PM

Another creative commons question concerning a photograph. The photo is on Flickr (with generic all rights reserved), and that's where an interested person spotted and communicated to me wanting to buy the rights for use of the photograph. Catch, I also uploaded the same photo to Wikipedia with a CC-attribution and share a like license on it, as well a GNU-Free Documentation License. Now what?

The bottom line question is that I can't figure out what my position as the copyright holder is with regard to this photograph. The person interested wants to purchase the rights to use the photograph for their business (as an example of their work). Is this generally a request with an expectation of exclusivity?

I also would feel like a heel accepting money for a photograph I've posted on Wikipedia, if the license attached to that photograph allow for commercial use with only attribution as a requirement (I can't figure it out from the Wikipedia definitions).

One slight difference between the Flickr photograph and the Wikipedia version is size of the file. One is 1,417 × 945 pixels (Wiki) and the Flickr version is 3456 x 2304 pixels (though, the email implied they wanted to use a smaller version of Flickr at 1024 x 683 pixels).

In short:

1) Would the Wikipedia licensing allow commercial use with attribution the only requirement?

2) If no, how would the non-commercial use of that photograph affect the offering price for the commercial use of the photograph? (i.e., You can use the photo, but it won't be an exclusive use except commercially).

3) Are there any other issues that I'm missing and need to be addressed?

Disclaimer: I looked but couldn't find quite the similar situation in previous AskMes, nor enough information about CC to answer my own question.

Thanks in advance. All help appreciated!

posted by Atreides to media & arts (16 comments total)

Granting a license to some people under some terms (eg, the CC licensing) doesn't keep you from granting a license to other people under other terms (eg, getting paid for its use). Obviously you can't offer exclusive use of that photo any more though.

It sounds like you licensed it under cc-by-sa. In that case, commercial use is fine, but the commercial use must also be cc-by-sa licensed ("or similar"). The person who contacted you may well be willing to pay money in order to get a license to use your photo without the ShareAlike requirement. Or the attribution requirement, for that matter.

I think the simplest most honest thing to do would be to make sure the asker knows that the work is available free under a cc-by-sa license, that you're willing to license it under other terms for a fee, and to make you an offer if they're still interested.
posted by hattifattener at 8:28 PM on November 24, 2009 [1 favorite]

IANAL; TINLA;

1) I would think not. The Share Alike requirement is "viral", I would expect that your commercial buyer would not like to have to license their new work to others under the same license (that's the share alike part) and would be willing to pay to not have that restriction on their new work.

This is exactly what mysql does with their licensing (e.g. they license under either a commercial or viral license; GPL or commercial in their case.

2) This is likely up to the buyer to tell you. I would expect exclusive use to command a higher price

A couple things you may want to think about:

Do you feel that you need to disclose this share alike option to them either so they can make the choice or decide not to license your photo at all?

I don't understand the part where you say "(as an example of their work)", do you mean that they are going to represent your photo as theirs? I can't believe that is the case, but wanted to be sure.

Did you photograph something they did make?
posted by bottlebrushtree at 8:31 PM on November 24, 2009

Do you feel that you need to disclose this share alike option to them either so they can make the choice or decide not to license your photo at all?

I do feel a need to disclose the Wikipedia photo, if only on the grounds that I obviously made an earlier decision to put it on Wikipedia (and I'd feel like a sell out if I betrayed that decision), as well I don't want them to feel as if I pulled a fast one on them if they discover the photo on Wikipedia later.

I don't understand the part where you say "(as an example of their work)", do you mean that they are going to represent your photo as theirs? I can't believe that is the case, but wanted to be sure.

The person involved represents a company that installs/makes X item, and the photograph I took apparently shows a good representation of that item in use. So the company wants to use the photograph to illustrate their item in use.


Thank you for the answers so far!
posted by Atreides at 8:44 PM on November 24, 2009

1) The license allows commercial use. However, the "share-alike" clause is going to be a poison pill to most commercial entities. It means, in essence, "Whatever ad you make with this, anyone else can reprint that ad and alter it any way they want.

2) Depends on the licensing entity. One company might want exclusive rights, which you can't offer. However, plenty of companies pay a licensing fee for non-exclusive use of images. (Check out the last page of a few Consumer Reports magazines, they often show examples where the same photo is used to advertise tooth whitener in one case and Viagra in another, for instance.) In general, the less exclusive a license is, the cheaper the price, but on the other hand you're going to pay more for non-exclusive use of an Annie Leibovitz photo than the exclusive use of a shot your uncle Gus took.

3) You want to make it clear who retains the copyright, and whether it can be used for a single purpose -- like a brochure -- or whether they can use it and re-use it as much as they want, like a logo. If there is a person prominently featured in the photo, you'll probably be asked to indemnify the purchasing company from any lawsuits by that person, so make sure you have a model release.

Photo prices are all over the place. Ten dollars could buy you a disc of hundreds of royalty-free stock photos, or you could pay a hotshot photographer hundreds or thousands of dollars for a single image. So there really isn't a "standard price" that you could look at. It really comes down to what they offer and whether the money is worth it to you.
posted by lore at 8:49 PM on November 24, 2009

Oh, and I should point out that you can rescind the "poison pill" for this company. You still own the copyright, so you can tell them "You don't have to pay attention to the sharealike clause." The original photo will still be under the CC license, but the ad (or whatever) they make won't be.
posted by lore at 8:50 PM on November 24, 2009

When you license something, you don't lose the right to re-license it under other terms later on (unless the first license forbids it). I had a friend who wrote some open source software and later had someone coming to him asking if they could buy a commercial license for their their commercial software.

If your picture is illustrating the object on wikipedia, that's probably where they found out about it in the first place.
posted by delmoi at 8:54 PM on November 24, 2009

There's no conflict here, you have licensed the image under specific terms to someone else, that does not mean you can't license it to someone else under other terms (as long as there's no direct overlap, ie. giving them an exclusive license when you clearly can't do that now).

So there really isn't a "standard price" that you could look at. It really comes down to what they offer and whether the money is worth it to you.

This is true, but you can go on Getty Images and look up any rights managed image, plug in the usage they are asking for, and get an in-the-ballpark figure for what a fair market value is.
posted by bradbane at 9:00 PM on November 24, 2009

Thank you for all the answers. They have been extremely useful so far and have helped clarify the issues. If you have more to add, please do so, and thanks again!
posted by Atreides at 9:36 PM on November 24, 2009

I do feel a need to disclose the Wikipedia photo,

Is it important to be that specific? Maybe just, "I can't offer exclusivity because the image is already licensed". There has to be a better way to say that, but anyway.. My point is, do you feel you have to tell them where it is in use?
posted by Chuckles at 9:52 PM on November 24, 2009

I've had the same situation — someone came and offered to buy a photo that was already made available under CC-BY-SA and GFDL.

Just out of fairness, before we got into negotiations I let them know that the photo was available, for free, under those licenses. They reviewed them and determined that because of the viral nature of those licenses, they weren't suitable. So we agreed on a price for a perpetual, non-exclusive license, drew up the paperwork, and I got my check.

Most people who are doing for-profit commercial projects view a viral license as no license at all (or worse), which is great if you're trying to sell content. You can license your content under CC-BY-SA or GFDL, and it will be available for use to most free projects (incl. Wikipedia) but won't cost you that many sales.

This is the basis behind lots of 'dual licensed' software products (e.g. MySQL), and it's something that individual content generators (writers, photographers, etc.) are just starting to pick up on.
posted by Kadin2048 at 11:58 PM on November 24, 2009

I dispute that there is an “original photo” in this context save for the file your camera created when you depressed the shutter button. Resized versions of the same file are not new files; they are not new photographs.

Each new resizing, or each duplication of the photo, does not create a new photo. In turn it does not create a new set of rights.

Your Flickr and Wikipedia licences are this irreconcilable in the first place. There is only one photo, irrespective of the number of copies in existence. You cannot assign two sets of rights to one photo. All you’ve got is one photo.
posted by joeclark at 12:01 PM on November 25, 2009

You cannot assign two sets of rights to one photo.

What? This is not true. While I agree that resizing or copying a photo does not create a new 'work,' you can offer the same photo (work) under multiple licenses. Vast quantities of software and other types of IP are offered under multiple licenses. It's nothing that odd.

You're saying to a potential user (licensee), in the case of a dual-licensed CC-BY-SA / GFDL: "you can use this photo under the terms of the Creative Commons Attribution ShareAlike, or under the terms of the GNU Free Documentation License, your choice."

Similarly, you can license the same piece of IP to one licensee under one set of terms, and (provided the license isn't exclusive) under a different set to a second licensee. E.g., you can have one licensee, or set of licensees, using your IP under the GFDL, and still license it out under a more traditional commercial license to another licensee.

People can combine licenses to achieve interesting effects. You can offer something under a (non-viral) attribution-noncommercial CC license and the GFDL; that would mean that commercial must use the viral GFDL, but noncommercial users just have to show attribution. I don't like doing this because it gets complex, but it's certainly something that's done.
posted by Kadin2048 at 5:43 PM on November 25, 2009

The difference, Kadin2048, is that nobody ever claims there is an original of e.g. MS Word or OpenOffice or Seamonkey. Yet again, the software analogy falls apart when applied to other works.

There is an original photograph – a silver negative, a chrome, the file created by a digital camera. The fact it is easier to duplicate the last of those three does not invalidate the fact that you have duplicated it. There is only one original photograph; every resizing is a copy (unless you overwrite the original inside the camera) and every copy is (QED) a copy.

Hence I restate my point: There was only ever one photograph and only one bundle of rights could ever apply to it. Or, more finely stated, only one bundle could apply at any given time, as indeed the creator could relicense the single photograph as he wished.

Your JPG and my JPG and Wikipedia’s JPG and Atreides’s JPG can’t all have different licences.

I have not articulated any remotely novel concept here. A photograph is a unique specimen irrespective of format.
posted by joeclark at 9:46 PM on November 25, 2009

> Your JPG and my JPG and Wikipedia’s JPG and Atreides’s JPG can’t all have different licences.

Yes they can and often do. I see this every day in my licensing work.
Do you have any legal basis or case law for saying what you say above?
posted by bottlebrushtree at 8:31 PM on November 30, 2009

It's not so much that there are different images with different licenses, as there are different people with different licenses to a work. You give certain people more desirable licenses in return for them giving you money. This is no different from selling software, say: person A might have no license to the software, person B might have paid retail and have a license to use it themselves, person C might have paid a corporate site-licensing fee and have a license to do all sorts of stuff with it.
posted by hattifattener at 12:25 AM on December 1, 2009

And a brief update about a month and a half later. Received a check from the folks for the photograph. So happy ending and thanks for all the advice!
posted by Atreides at 6:49 AM on January 20