Fair use or not?
December 17, 2009 2:47 PM   Subscribe

I recently found this image of mine on this webpage. My question: Has CBS conformed to the terms of my license? I say not.

I have the photo licensed under CC-Noncommercial, attribution, sharealike.

As I understand it, Noncommercial means no commercial use. This is a grey area to me, I think a megacorporation like CBS is commercial on the face of it, whether or not they want to split hairs and say a particular use is noncommercial.

Attribution means that CBS is bound to attribute the image correctly, which means to me specifically, not to a commenter in a Flickr Thread. Clueless.

ShareAlike: Isn't that the very think the corporations are all screaming about when they say a license is viral? That their use binds their produce and anything incorporating it to my license? Did I just kill CBS's copyrights?

Seriously, I don't know if the EFF cares about this sort of thing, and maybe it's small 'taters (heh heh), but it bugs me, somehow.

What do you think?
posted by pjern to Law & Government (37 answers total) 4 users marked this as a favorite
 
Seems pretty clear that they are violating at least one of the CC point...the non-commercial clause. THey can argue that the article itself isn't selling anything. But the whole site is intended to drive eyes to the ads on the page. Seems commercial to me.

And, yeah, they got that attribution way wrong. Idiots.

Maybe someone at CC could render an opinion?
posted by Thorzdad at 2:55 PM on December 17, 2009


I'd contact EFF--they might know of an attorney who works on this sort of thing who could take care of this.
posted by Ironmouth at 3:00 PM on December 17, 2009


Well...typically the non-commercial is understood to mean that you can't use it in conjunction with a product for sale. Use on a blog would usually be non-commercial (the argument about commercial ads on the site seems thin, but of course, IANAL). But they did screw up with the attribution. You should contact them with the request to correct that with your name- not the commenter's name.
posted by Eicats at 3:00 PM on December 17, 2009


It's a commercial site, and the attribution is wrong. Not fair use.
posted by fixedgear at 3:01 PM on December 17, 2009 [3 favorites]


If the attribution is wrong, then contact them and tell them.

On to the NC part of this: if they are making money from this web page, it is commercial. I'm sure they gain ad revenue from it, so they are using it wrongly.

The first thing you need to do is contact them. Contact the blogger as well. You don't need the EFF, just send an email and see how they react.

Also, you CAN give them permission to use the image. Ask them for a cut of the ad revenue, or a flat fee of, say, $200. See what they say
posted by phrakture at 3:05 PM on December 17, 2009 [1 favorite]


Each of the Creative Commons licenses has a full "legal code" version that you can click through from the summary page. Here is yours. Here is the relevant paragraph:
You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.
posted by grouse at 3:07 PM on December 17, 2009


I'm pretty sure the ShareAlike clause only binds to the image, not the entire product they produce. So if they made any edits to the image and use that edited image anywhere, they would have to release it under the same license you have the original under: "Share Alike — If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one."

Attribution is iffier in this case, since they got the URL correct, just not the name. Probably an oversight that they will fix for sure if you contact them.

I can't really say if using the image like this is a commercial use.

But, anyway, remember is that this was used in, more or less, a blog. It was probably seen by the writer and *maybe* one editor before it was published. It's not really the same type of thing as a wire story or a some other actual news article that CBS might publish on their website.

If you don't want them using it, contact the writer of the entry and they will probably swap out your image for one that is a more permissive license.

(Also, unless anyone really has experience about what "non-commercial" means within the contact of a CC licence, "You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation." is what it says in section 4c. Is this usage "primarily" used for a commercial advantage? Possibly not.)
posted by skynxnex at 3:10 PM on December 17, 2009


Response by poster: Yeah, grouse, but I don't understand a word of that paragraph. It makes my head hurt.
posted by pjern at 3:10 PM on December 17, 2009 [2 favorites]


The definition of "noncommercial" is vague enough that Creative Commons commisioned a study of how content producers and creators interpreted it. Here are some more related links from their wiki. A post on a company blog, with ads, is definitely a gray area.

I don't think that this is considered a derivative work under the definition in the license or in copyright law; they haven't modified, abridged, or otherwise creatively transformed your image. Instead they are distributing a verbatim copy alongside their own work, which I think makes it a "Collective Work" and explicitly allowed by the license.

Also, they are required to include or link to the license itself, not just say "CC 2.0." ("You must include a copy of, or the Uniform Resource Identifier for, this License or other license specified in the previous sentence with every copy or phonorecord of each Derivative Work You distribute, publicly display, publicly perform, or publicly digitally perform.") And of course the attribution is just wrong.
posted by mbrubeck at 3:16 PM on December 17, 2009


phrakture++

They took your image and used it in a commercial manner which was against the terms of your blanket license.

Contact the blogger and the editor of the website and offer them terms for the use of your image. If they don't agree, tell them to take it down.

Either they'll license it, or they'll stop using it. If they stop using it, you still have the opportunity to go after them for stealing your IP -- but that's probably not worth your time. If they continue to use it after being notified, your damages are greater, but likely still not worth your time.

If they are uncooperative, for amusement value, I'd send a DMCA notice to their ISP. It may not be a movie, but it's still your property. :)

It boils down to yes, you're being wronged here, and if they're not willing to do the right thing, you're probably best off to just let it go.

Here's some info from Creative Commons on license enforcement. They, nor the EFF, are there to help you with that. You would need your own lawyer. And I doubt any lawyer you'd want would take your case.
posted by herrtodd at 3:17 PM on December 17, 2009


One possible confounding factor is that you might not have any rights in that image yourself, pjern. You didn't create the report card, did you? You just scanned it? I'm not sure that counts as an act of creation, for copyright purposes. (I'm not a lawyer, blah blah.) it's not exactly the same situation, but check out this essay by Eric Felten.
posted by hades at 3:20 PM on December 17, 2009 [1 favorite]


In my view this isn't all that clear.

I mean, it's not clear to me whether the Creative Commons definitions of 'derivative work' or 'collective work' apply to an image posted on a web page. Clearly, if I modify an image in Photoshop, the result - and image - is a derivative work. But if I include the image in a web page, is the web page a derivative work of the image? I'm not sure.

I mean, CC-NC-SA images are often shown in Flickr web pages, even though Flickr is a commercial company, and I assume the Flickr logo isn't CC-NC-SA, so the page as a whole presumably isn't under CC-NC-SA. Indeed, if you had to share a webpage under the license of any -SA image posted on that webpage, would it even be possible to post a CC-NC-SA image and a CC-BY-SA image on the same webpage - after all, which of those two images would the webpage have to be shared under?

Even after reading the license 'legal code' I'm not sure.

It's my view that this kind of license confusion limits the usefulness of a lot of copyleft licenses, which is why I prefer to release things to the public domain if I'm going to release them at all.

Of course, there's no excuse for them crediting the wrong person.
posted by Mike1024 at 3:22 PM on December 17, 2009


You do not need a lawyer, primarily because a lawyer will cost more than you will recoup.

There is no need to makea big EFF hulabaloo over this. Just send CBS a bill. Your real question should be "Where should I send it?"
posted by DarlingBri at 3:22 PM on December 17, 2009


Response by poster: Yes, I scanned it; it was my mother's report card from 1946. I spent considerable time in Photoshop making it legible (the raw scan was basically unreadable). That's the 'act of creation' that I think makes it valid. IANAL and all that.
posted by pjern at 3:23 PM on December 17, 2009


Relevant quote from the Felten essay:
Although “doubtless requiring technical skill and effort,” the U.S. Court for the Southern District of New York ruled, “exact photographic copies of public domain works of art [are not] copyrightable under United States law because they are not original.”
Obviously, that's referring to public domain works of art, not your mother's report card. But my guess is that if you were to press this with CBS, their lawyers could make a case that copyright in that image belongs to the estate of Florilla Gard, not you. But, hey, I'm not a lawyer. I'd settle for writing to them and asking them to fix the attribution.
posted by hades at 3:28 PM on December 17, 2009


My guess is that they'll back down. It doesn't matter if it's a scan or a photograph, the creation is the image, not the report card. Not sure why people aren't understanding that. It's like saying my photo of a tree isn't copyrightable because the tree did all the work—that's not how this works.

You can assert that the attribution is incorrect and that it violates your non-commercial license, and that you'll sell a non-exclusive, one-time usage license for this post for $250 or something the works for you, or they should remove it. They'll either pay or remove it. (Probably remove it.)
posted by disillusioned at 3:37 PM on December 17, 2009


Best answer: Keep in mind that while this post is under a CBS website, the person who actually uploaded the content was probably the writer herself. It's most probably very informal and she probably did a quick Flickr search for 'report card' or something. On our side it's easy to see CBS and go 'GAAH' but really this is just one of many guest blogs hosted on the CBS site.

Shoot her a nice email explaining that you're uncomfortable with its use; she'll probably take it down soon.
posted by suedehead at 3:40 PM on December 17, 2009


Best answer: For sure, it is a mis-attribute. Email the author for a correction. Clueless perhaps, but at least she tried. You aren't going to get any money from it, it seems pretty clear to me that the author attempted to use an image that she thought was licensed for what she was doing.

The commercial versus non-commercial is much fuzzier; I don't see that use as commercial use but it isn't my image. The article doesn't refer to the work in any way and the image doesn't improve the content in any way. It seems to me like the use was in the spirit of the license. It would be different if the image use was more formal, like as part of the branding of some site's educational section.

Don't let the CBS versus somebody else thing get in the way, it is irrelevant to the question of commercial use. If it was some anonymous clown's blog that had similar advertising on the page, would it still be commercial use? That's the answer to the question.
posted by gjc at 4:07 PM on December 17, 2009


It looks like the attribution has been fixed. There's a link to your original Flickr at the bottom of the article now. Dunno if that changes how you feel about it.
posted by Arbac at 4:16 PM on December 17, 2009


Oh, and the viral license thing. Not relevant here, as far as I see it. If they took the image and incorporated it into another image, that other image would have to be as free to use as yours. But nothing else. (*maybe* the copyright to the entire page, but certainly no other part of their website or other holdings.)

I also don't think fair use has anything to do with it- fair use, as I understand it and overly simplified, governs how someone can use your work against your will. In this case, since the author attempted to cite you under the terms of the CC license, they believed they were using it within the terms of that license, and not under the terms of the more general fair use doctrine.
posted by gjc at 4:17 PM on December 17, 2009


Response by poster: I sent this email to the purported author of the blog:

I am the owner of the image of my mother's report card you used on this blog page:

http://moneywatch.bnet.com/saving-money/blog/college-solution/why-your-teen-needs-a-b-average/806/?tag=col1;blog-river

Please correct the attribution and licensing.

Thank you:

Phil Jern


Let's see what happens.
posted by pjern at 4:21 PM on December 17, 2009


Response by poster: Arbac: They are still attributing it to my daughter, who simply commented in the Flickr thread.
posted by pjern at 4:23 PM on December 17, 2009


Yeah, grouse, but I don't understand a word of that paragraph. It makes my head hurt.

i think you would be better served by using a license for your images that you actually understand.

(and, as others have said, if you have a problem with how it is being used, i don't see the harm in contacting them and asking them to please not do it. most people will happily take down images in cases like this. you don't have to go all internet-lawyer on them as your first step. is that how you would want someone bringing a similar issue to you?)
posted by jimw at 4:24 PM on December 17, 2009


Response by poster: jimw: I understand the basic tenets of the licensing, to a layman's approximation. I just can't abide legalese.
posted by pjern at 4:26 PM on December 17, 2009


I disagree with those best answers a little bit, but only because the writer is a professional journalist and author. She should know better than this.

But in any case it's good that you've tried to contact her. She'll probably be embarrassed by this little faux pas and will fix things post haste.
posted by snsranch at 4:31 PM on December 17, 2009


IMO, the only mistake they made is in the attribution, which is an error, not something intentional. You could and should write them asking for them to correct it. However, other than that I think they can argue they are abiding by the license you have specified, and make the argument far enough that you're not going to win a summary judgment against them or anything like that. Which is far enough to make them "right" because of the $$$ involved.

If you are concerned about people using your images, then label them with an aggressive copyright along with a note that says something like "I'm almost always OK with people using my images, but you must ask me first."
posted by glider at 4:35 PM on December 17, 2009


It doesn't matter if it's a scan or a photograph, the creation is the image, not the report card. Not sure why people aren't understanding that. It's like saying my photo of a tree isn't copyrightable because the tree did all the work—that's not how this works.

I hate to derail any further, but did you read the Felten essay? Or the quote I pulled from it? It's nothing like your photo of a tree, but it's conceivably like your well-executed photo of a painting hanging in a museum. I'm not saying it is like that, because I don't know for sure. I'm just saying that it's not as straightforward as you seem to think it is.
posted by hades at 4:44 PM on December 17, 2009 [2 favorites]


Forgive my chiming in, but the report card isn't in the public domain. It belongs to pjern's mom and and any images of it created by pjern belong to him.

The fact that the article links to pjern's photo stream twice leads me to believe that the mistaken attribution was totally unintentional. No biggie there.

pjern, please let us know what happens. Whatever the outcome, this post will be a great point of reference.
posted by snsranch at 5:23 PM on December 17, 2009


Possession != copyright. The card belongs to pjern or his mom, but unless you're an IP lawyer, I'm not taking your word for it that he holds the copyright to any images of it, especially if the image in question is specifically trying to be a faithful reproduction of the card itself, absent any context which would make it a new creation. (Does restoration count as new creation? I don't know. Do you?) It really is an interesting essay and decision, and while it does not exactly apply here (because, right, mom's report card isn't a public domain image), it's very similar.

It's not that much of a stretch to consider the original report card as an unpublished work by the teacher, and as such under copyright (owned by her estate, not by whoever has physical possession of the card) until 70 years after her death. Ok, it's kind of stretch, but this is lawyers we're talking about. Maybe it's a work for hire, and the school district owns the copyright for 120 years after it was created. I don't know; I'm not a lawyer. And unless you are, neither of us really knows what we're talking about, and probably shouldn't be offering authoritative-sounding legal advice.
posted by hades at 6:08 PM on December 17, 2009 [2 favorites]


The chance of the copyright of the original report card being owned by pjern or his mom is virtually nil. In fact, it probably is in the public domain and not under copyright protection at all.
  1. The filled out report card probably cannot receive copyright protection because it lacks originality. Maybe the design was sufficiently original for copyright, but in that case the copyright would be held by the designer rather than the teacher.
  2. Even if it were under able to receive copyright protection, the report card predates the accession of the U.S. to the Berne Convention in 1989. Before that time a copyright notice was necessary to assert copyright, which this report card lacks.
  3. And even if someone held a currently valid copyright on this work, it wouldn't be pjern's mother, as hades points out.
It's hard to imagine

I spent considerable time in Photoshop making it legible (the raw scan was basically unreadable). That's the 'act of creation' that I think makes it valid.

While I am not a copyright lawyer, I doubt that this passes the threshold of originality. Spending considerable time on something does not make it copyrightable. Read Bridgeman Art Library v. Corel.
posted by grouse at 6:38 PM on December 17, 2009 [3 favorites]


For those of you saying this is commercial use, let me re-frame this question as follows: Say I'm an ordinary personal blogger, writing about what I ate today and what I got my little kid for Christmas et cetera. I'm not selling anything but my blog is hosted on blogger or typepad or some other free service that runs ads. I use a CC BY-NC-SA licensed image in a post, with proper attribution. Am I violating the license? Because somebody is making money off pageviews. It's not me, and it may not even be more than a fraction of a penny, but there is a commercial element.

The above is exactly the kind of situation I would have expected that CC would want to encourage. Does NC really mean that there can't be any ads on the page whatsoever? I must pay out of pocket for my blog or else never use any BY-NC-SA material? Because that seems like it would rule out 99% of all blogs.
posted by Rhomboid at 7:17 PM on December 17, 2009


Rhomboid: CC encourages the scenario you painted via different licenses, such as Attribution or Attribution Share Alike.

Noncommercial means noncommercial. That's the point of using that license - to not have anyone else profit from your work.
posted by cmgonzalez at 8:36 PM on December 17, 2009


Just coming in to this thread at 2:44 am -- the image doesn't appear to be on the site any more, at least when I go to it. So they may have taken it down after receving your request.
posted by EmpressCallipygos at 11:45 PM on December 17, 2009


Response by poster: I got a curt email:

Your mother's report is no longer on my post.

Lynn O'Shaughnessy


Fine, but she left the link and the erroneous attribution.

I'm going to reply:

Well, that's not what I asked for now, is it? I had no problem with the image being on the blog, I simply asked for the attribution to be corrected and the proper licensing link be added.

You might notice that at the bottom of the article, you attribute the image to samanthashnurr. She is a commenter in the Flickr thread, nothing more. (She is also my daughter, but that's not germane to the discussion.)

You may not have noticed that you left a link to the image on my (pjern) Flickr set at the bottom of the post, with the incorrect attribution. That whole link was the crux of the problem in the first place.


posted by pjern at 12:02 AM on December 18, 2009


Uh, you're being a little terse/snappy in your emails. This is not a big issue. Figure out what you want. The license includes something that says the photo can't be used commercially. Are you bothered by the fact that CBS used it? Then you're set; she took it down. Go to bed, yay!

If instead you're okay with the image being up but you just want the name to be correct, send this to her:
Hi Lynn, thanks for your quick response. I see you've taken the image down -- let me clarify. Although my image is under the non-commercial CC use, you're welcome to use it just this time, but what I wanted to point out was that the image is by pjern, not samanthaschnurr. Thanks!
posted by suedehead at 2:42 AM on December 18, 2009 [2 favorites]


I think the problem stems from the use of the word "commercial" versus "editorial" in the journalism industry. As a photographer, I'm required to get a model release or property release if I want to license a picture of somebody or something for "commercial" usage, meaning to directly sell or endorse a product. I would never need a model release to license a photo to a news organization as part of a news package. That usage falls under "editorial" usage and has been held up in US courts (one recent example). Greater freedom in using images and people in editorial context is generally related to the First Amendment. Because of this, everyone in a news organization including the legal team would likely look at you sideways if you argued the image was being used in a commercial manner, despite what your gut and everyone else in this AskMe tells you.

This, among many other issues, is why I don't like CC licensing, especially as regards photography and its usage in editorial and noneditorial contexts. A photo editor friend recently posted on her facebook page, likely under vexing deadline pressure, "What the hell does 'share' mean? I hate CC. Can I use the image or not?" It's so much easier under traditional copyright licensing schemes for everyone involved (somebody wants and image, they ask the creator and agree on the terms of the licensing; both the publication and the copyright holder know what's going to happen with the image and for how long), and the creator gets paid, too.

And, as you've found, the net result of even raising a question is that your image is no longer being used, which seems antithetical to the intent of Creative Commons. That is, you used CC licensing because you want new work to be created using the work, and then confusion directly caused by CC licensing led to the new work no longer incorporating your work.
posted by msbrauer at 6:13 PM on December 18, 2009 [1 favorite]


It's so much easier under traditional copyright licensing schemes for everyone involved (somebody wants and image, they ask the creator and agree on the terms of the licensing; both the publication and the copyright holder know what's going to happen with the image and for how long), and the creator gets paid, too.

Absolutely nothing is stopping you from doing this even if the creator is licensing their work under Creative Commons. CC does not prevent the creator from licensing the work to someone else under any terms they see fit.
posted by grouse at 6:55 PM on December 18, 2009


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