Why Creative Commons is bad for photographers

Really excellent treatment of the failure of Creative Commons for photographers from Bay Area photographer Dan Heller who has a very thoughtful website about creative techniques and business issues for photographers:

“The reason [that Heller doesn’t use CC licensing for photographs] 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.”

You can put this on your bookshelf next to other critics of Creative Commons licensing Professor Jane Ginsburg, ASCAP’s Joan McGivern and me.

If you haven’t seen Lessig on the Steven Colbert show promoting his new book, you should find that clip. In it he acknowledges openly that the underpinning of Web 2.0 companies like Flickr (owned by Google competitor Yahoo!) is that they get users to give them “content” for free which they they use to sell advertising against that they don’t have to share with anyone in the case of Flickr. (And–most importantly–bulk up valuations for selling the company.) Lessig doesn’t mention YouTube (owned by Lessig benefactor Google) but that is arguably the most obvious example in the space, although though YouTube does pay at least the major labels and other “big guys”.

He didn’t say this–and he wouldn’t–but ask yourself who does the CC license help to capture that value–creators (whether amateur or professional) or the Web 2.0 company?

If there is a question by the buyer of the company as to what exactly it is that the company owns, ownership can be justified based on actual licenses, or if you don’t have those pesky documents, on terms of service–or with a Creative Commons “license”.

It sounds a lot better to say to a potential acquiror that you have “licenses”–irrevocable, perpetual licenses–tends to keep the selling price up between crashes. Particularly if its one Web 2.0 company selling to another Web 2.0 company–the valuation of one promotes the value of the other, both of which are probably grossly overstated.

Creators in the music industry understand the “irrevocable, perpetual” part–just like a cramdown artist recording agreement. Including the “no royalties” part.

One thing that has always mystified me about the Creative Commons organization–why does it take so much money to give things away for free?

8 thoughts on “Why Creative Commons is bad for photographers

  1. It takes so much money to currently give something away for free because there is no legal frame working in the copyright laws to do it. Tell me, if I wanted to place a work of mine into the public domain, how exactly would I do that? As I understand it, copyright laws do not give me an option to do so. The copyright is automatically assigned when I create the work. The law assumes I want it to be copyrighted and does not present the creator with an alternative, besides waiting for several lifetimes. While creative commons is certainly flawed, it is trying to fill a very blatant hole in our intellectual property system.Perhaps you want to hoard all of your creative work, only to be shared with the highest bidder, but that is far from what all creators want to do. The legal system needs to present a good clear option for the person who wants to give their work away to society.I think a better blog post for you to write would be in what way our legal system should be changed to give creators better flexibility in how they share their work instead of assuming that they don't want to share it.

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  2. It actually costs nothing to not enforce rights. I don't think you'll find anything I have ever said that assumes that artists don't want to "share" their work if by "share" you mean make a conscious decision to allow others to use their work in any manner.Giving a work away to the "public domain" during the copyright term is as easy as making it available and never enforcing rights. That requires no change in the law.That's not what "share" has come to mean. "Share" typically means bartering. That is, "sharing" as in "filesharing", typically means exchanging works in a loose kind of barter transaction without regard to what the artist wants. I actually don't think that Creative Commons the organization is flawed at all, it is very successful in perpetuating its own bureaucratic imperative by raising money for itself–millions of dollars it would appear–on the backs of those who would like to not enforce their rights.I personally would prefer to see that money invested in music education rather than CC's overhead, just to give one example.

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  3. Neither is a CC license, but forswearing to enforce rights results in essentially the same result. If the object of the exercise is to "put a work of copyright into the public domain", that's a bit tricky to actually accomplish. I don't quite see what the difference is between forswearing enforcement and a CC deed/license/whatever except that using CC results in millions for CC.Plus I think you will find that there are substantial criticisms of the legal work involved in the CC license itself, which, to be kind, is flawed. In the case of the "audio" license as applied to music, so flawed that under many common (and frankly obvious) circumstances it is just not workable.Unless the audio deed/license/whatever has been changed recently, the first thing that's wrong with it is that it attempts to cover two copyrights with one license without distinguishing the two (which may be created by different people).One doesn't need to know anything special to see that there may be a problem there. And yet….

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  4. Actually, yosh has a point. If someone starts violating your copyright and you don't sue, is it because you don't ever plan to sue? Or is it just because you haven't heard about it yet?The problem is that even if you declare something to be "copyright free", that's still not necessarily a legally-binding statement.

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  5. Depends on who it is, you may choose not to sue Google because they will out litigate you (and in this case "you" could refer to the United States). Even so, since the CC license is itself flawed and probably unenforceable at least for music (the only one I have focused on) which is worse for the philanthropist artist?"Also note a good point made by Professor Ginsburg in the cited article: A public license is not self-enforcing. This may be an obvious point, but authors bedazzled by the “cool” communitarian ethos of “sharing” licenses need to realize that they’re on their own if some of their “sharees” don’t play by the rules – for example, if they commercially exploit a work licensed under “non-commercial” restrictions."

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  6. No, that still doesn't work. That's me choosing not to sue Google after they've violated the terms of copyright; that's not Google knowing that it can do whatever it likes with my creative work because I've declared it free of copyright.*****You're right, though, that CC doesn't have the legal backing that regular copyright does. I can sue someone in court over a violation of CC terms, but it's much less clear of an outcome than if I just said "this is copyright to me".

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  7. It would be very easy for invidiual copyright owners to simply put a statement on the work itself or on a website that stated the terms.My point is that doing it at the citizen level would not advance the agenda of Creative Commons as a political organization and would not create influence for the leaders of the organization at the expense of the people who create the value in the organization–individual creators.

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