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Protecting Your Images: The Myth of Creative Commons

Written by Bill Green

Saturday, 01 December 2007

One of the biggest problems photographers face online is keeping track of all the uses of their images. The recent case of an ad agency using a Flickr image for its client Virgin Mobile highlights this all too well.

Adding to the confusion is the Creative Commons (CC) license now in use. I won't go into the gory details -- you can review the history of it here. What is important to understand is that using a CC badge or credit will never prevent someone from using an image they see. The saying "locks are for honest people" was meant for situations like this. The vast number of creatives and agencies aren't out to rip anyone off; it's just not in their best interest, legally or ethically.

Tags: copyright, Flickr, photography law, Creative Commons

Unfortunately, while agencies may not be trying to deliberately avoid paying for an image used in a final campaign, they will grab whatever they can for free in the early presentation stages. If they can't find it among Photodisc's free comps, they'll scan design annuals or Black Books, grab images off Flickr, the countless portfolio sites, you name it. Watermark your image? Sorry. We'll just pull a screen grab and bump up the image in Photoshop.

But it's not just about giving credit. A more basic rule was broken in the Virgin case: the girl in the photo was a minor. Using an image without compensation or credit is one thing, but she needed parental consent. Thing was, the CC mark must have made the ad agency giddy, because it grabbed a bunch of teen shots -- one of which unfortunately was hers.

It's happened to me as well. Years ago at one agency, before the Internet blew up, I used an image shot by a local photographer that was sent from our client. They insisted we had to use it. We asked if they had permission and had gotten clearance. The client, their assistant and their cleaning lady all swore they had. Good thing we made them sign a CYA release, as it turned out they hadn't. The photographer just happened to walk into a retail store and spot that very image. (He was ultimately compensated by the client.)

In that instance, lack of the Internet meant that that photographer, if not for dumb luck, might never have seen that image. But at the other end of the spectrum, I'm not so sure today that we're any better off. Conventional wisdom would suggest that it's now too hard to steal online because it would be spotted right away. The opposite seems to be happening though; there are simply too many ways for an image to circulate that are beyond your control: Flickr, e-mail, Web sites, Google, etc.

I think Creative Commons has its heart in the right place, because it promotes a climate of sharing. But no system is 100 percent foolproof. Unless you can negotiate every possible scenario for how and where your image will be used, the only sure way to keep protected may just be to not post anything live anymore.

[Bill Green has been a designer and art director on a wide range of brands for nearly 20 years. In addition to his consulting work, he can be found spending way too much time on his blog, Make the logo bigger. E-mail him at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .]

Comments (11) >>

Denise 'Money Making Machine' Maine said:

Sooner or later your image is going to be free game, so deal with it.

_denise

December 01, 2007 | url

Emile said:

Great article and I'm glad there are people like you still hesitant towards CC. However, it is clear that the digital age is a market of free consumption and novel business models. The door has been opened, and you must not worry about how someone uses your works without your knowing it. If you make it, people will use it. If this is a problem, then maybe give another profession a go? No hard feelings, just the nature of the beast.

December 02, 2007

Adrian said:

Emile and denise you both need to get your heads checked.

The fact that people are getting away with this is ridiculous, I myself keep very good track of any of my work online. If someone were to take it and use it without my permisson they would be handing over millions (assuming they had that much) or take a felony hit and a nice prison sentence.

I agree it's not enough that sites like deviantart as an example provide watermarking however for my works security I like to add a random, and very well hidden amount of my own personal watermarks.

Unfortunately that's the only true way to stay safe posting your work online.

We live in sad times for sure.

December 02, 2007

SKTurner said:

I think you're missing the entire point of Creative Commons. I've marked my some of my work as Creative Commons because I want people to use it freely. That's why it's "common." The Virgin incident does indicate a glitch in the whole system, but using Creative Commons doesn't make it easier to steal an image (the internet does), it just makes the image available to other people under the guidelines that you set up.

December 02, 2007

Bryan M said:

Licenses can't protect your work. That's your job. A license is a defined set of rules on how your work might be used (freely, nor not at all). Creative Commons allows an easy way to define certain permission without needing a lawyer to write a custom license agreement, or without having to put your work in the public domain. It can't prevent outright theft or the breaking of *other* laws. Because people don't understand how CC is supposed to work, it doesn't mean it's broken.

December 02, 2007

woolie said:

Yes, this is just another person who doesn't "get it." People mark their work as CC because they WANT it to be used freely, without compensation. It is an outgrowth of the open source development model, which has provided countless benefit to people who contribute to the system and enjoy the fruits of the collective effort.

I am not a professional photographer (I work on pen source scientific software), but still many of my images are high quality and suitable for reuse in many kinds of projects. I intentionally mark them all as freely licensable for all use because I like contributing to an open access society.

If you don't want your work used without attribution/permission/compensation, then don't CC it or clearly mark it with a restrictive license. Of course, with this model you risk being steamrolled by the open source movement, which is probably going to be the ultimate fate of everyone whose livelihood depends on a closed model.

December 02, 2007

Niels Henriksen said:

For all my images I do not assign CC rights. I try and maintain full rights. The operative word is ‘try and maintain’ because I really don’t have any clue if my images are being used somewhere else.

I have 6 web sites that host my images and I no longer use watermarking and therefore they are ‘free for the stealing’ and only if I am lucky enough will I come across them in the future.

The reason I don’t use CC is because for each photo that will ultimately go to print I tend to spend about an hour in the artistic mode of fine-tuning the attributes of the image.

I tend to approach my photography the same I do for my paintings and therefore I do not want others to freely play with them.

Niels Henriksen

Blog at http://www.niels-henriksen.blogspot.com/

December 03, 2007 | url

Jim Goldstein said:

I wrote about this in November Creative Commons: A Great Concept, I’ll Never Employ. Whats amazed me is how numerous people mix up what Creative Commons is versus a perceived evil of "copyright". The irony is incredible. I've been blogging about this extensively since and just the other day a couple well known bloggers were lobbying for people to get used to giving their photography away for free (Steal My Content, Please!.

In its simplest form the argument is around asking permission for use. There really isn't much else to talk about. Use of CC is fine if you understand it and the potential ramifications that faces you. Most people do not. If you're serious about photography then Creative Commons is not a viable alternative. Creative Commons licenses are permanent and as I've blogged about and discussed with Wired.com bloggers, Flickr should not be able to let users switch back and forth. If you read the fine print once you open Pandora's Box with CC on your image that's it. Even if you did successfully track down every instance of your image used at that point you're going to have a hell of a time trying to argue infringement let alone seek damages. Photographers need to be smart and stay informed. Jumping on the bandwagon with out second thought is only going to undermine ones efforts.

December 13, 2007 | url

bg said:

(Sorry for the delayed response to all. Duty called.)

“so deal with it”

Lol, I just have to say, great comments from everyone, and nothing bugs me, but this remark always makes me laugh no matter who says it. As if you have no say in how something affects you. No, I don’t think I’ll ‘deal with it” thank you very much, but thanks.

As for some of the responses, I think my original point may have been misunderstood in some of the responses I read. I’m not pro or anti-CC either way. I have no horse in this race one way or the other.

“Yes, this is just another person who doesn't "get it." People mark their work as CC because they WANT it to be used freely..”

Woolie, I get it. Problem I see is that there are differing interpretations for the CC license and its use(s)–nobody seems to agree on anything. Look at the difference of opinions in just eight or so comments here alone.

(As for sharing, I totally get that and think it’s a great thing to share content with others.)

However, I’m coming at it from the POV of someone who sees people using the CC as some kind of shield to prevent misuse of their images. Good luck ‘cause it ain’t gonna happen. Locks are for honest people and the person who wants your image will use it no matter what you say or do. Many photographers, pro or amateur, on Flickr or elsewhere complain about not getting proper credit or getting ripped off because they thought CC was going to protect them like some shield–then act surprised when it doesn’t. You need to look no further than Perez Hilton, who pretty much uses any image he wants without compensation or credit to anyone.

(I’m also coming at it form the POV of someone who has had ideas/concepts ripped off where no CC would’ve helped. Sidebar to the discussion here, but that area is even more grey, because even though there’s an assumed copyright held by the author of the ideas, it’s the final execution that determines how close something was to the original, which is much tougher to enforce legally. Agencies run into this all the time, and if something they did looks too close to another commercial, they just called it an 'homage.’ ;-p )

And for the record, when I seek out images for use, I’ll pay if need be, negotiate a fee, credit, etc., whatever the author wants.

As to Jim’s points, I think in the case of switching back and forth, perhaps this is a case where people feel the more irons they have in the ‘protection’ fire, the better. Perhaps not realizing though that some of those protections don’t work or play well with others.

January 02, 2008 | url