Why Photographers Hate Creative Commons


Last week, Creative Commons turned five years old — five years of phenomenal growth, thanks in no small part to advocates like the photo-sharing site Flickr.

Now, I don’t want to piss on CC’s birthday cake just for the fun of it. But it does seem clear that an increasing number of photographers — not just professionals but high-end hobbyists also — have become disenchanted with the Creative Commons system.

Why? Depending on who you ask, it’s because:

    1. It’s taking money out of the pockets of working photographers;
    2. It’s putting money into the coffers of large corporations, whose executives like CC-enabled crowdsourcing even better than Third World child labor;
    3. It’s supposed to make sharing your work easier, but it often just makes it more confusing — creating the kind of misunderstandings that lead to lawsuits.

Since the first two complaints are related, let’s address them together. Creative Commons is a system that enables you to renounce some or all of your copyright protections — in the name of sharing. This raises a question that doesn’t get enough serious consideration: Who actually benefits from this?

Theoretically, we all do, since I can stick your Flickr photo on my blog and link back to you, and maybe this will cause more people to visit your Web site, and — who knows — maybe if you’re a professional photographer, you’ll get a paying gig or two out of it.

The fact is, though, that a Creative Commons license isn’t necessary for this kind of sharing to happen. People are going to grab your photos anyway for their noncommercial use, because that’s the common law of the Web today — where “fair use” is interpreted very broadly. And if you really, really want to encourage people, you can put a note on your Web site explicitly giving people permission to use your photos, under whatever conditions you set forth. How hard is that? Why do you need a CC badge to say it?

The real issue is commercial use — and this is where we get to who really benefits, at least over the long term. Before Creative Commons, a corporation or ad agency that wanted to use your photo would have to contact you or your photo agency for permission to use it. You could negotiate a price based on the particular use, making sure you got a fair deal.

Through CC, hundreds of thousands — if not millions — of photographers have thrown this right away forever. (Remember, CC says that once you choose a license for your work, it’s irrevocable.) Photographers are generally doing this with good intentions or for idealistic reasons. But the end result is that you are building a system enabling commercial buyers to use your images without paying for them.

I know what you’re thinking: “But you can choose a noncommercial use license to protect yourself from this.” Sure you can, if:

    1. You are informed enough to make the correct license choice;
    2. The publisher of your photo is informed enough to know the differences among the various licenses; and
    3. You, the publisher and the rest of the world can all agree on what “noncommercial use” actually means.

Gordon Haff offers just a few of the scenarios that can be interpreted either as commercial or noncommercial:

  • What if I have some AdSense advertising on my Web page or blog?
  • What if I put together an entire ad-supported Web site using noncommercial photos?
  • What if I’m using those photos as “incidental” illustrative content in a presentation I’m being paid to give? (This was my case.)
  • What if I print a book of these photos but only charge my cost? What if I cover my time at some nominal rate as well?

And if you and the entity that publishes your photo don’t see eye to eye — or you choose, as many CC users do, a simple attribution license? As Daryl Lang of Photo District News puts it:

If you’re not careful, you might inadvertently grant permission for your photo to appear on a giant billboard for herpes medication, or in the newsletter of some political organization you despise. Images have commercial value that’s very different from, for example, a piece of writing. Their rights need to be treated with care and respect.

Because it’s so confusing (or, to be more generous, “open to interpretation”), Creative Commons licensing spawns false confidence and innocent mistakes — giving sue-happy lawyers much to salivate over. Did you know that Creative Commons and Flickr can’t even seem to agree on whether CC licenses are permanent? That would seem to be a rather basic point.

Earlier this month, blogger Jeremy Johnstone expressed his frustrations:

I license almost all of my photos under a CC license (attribution-noncommercial-no derivative works 2.0 specifically) and I have been finding that virtually _no one_ follows what I believe to be the intent of that license …

I’ve come to accept my colleagues’ and peers’ opinions that non-commercial simply means they can’t sell my work. Personally, I think this should also mean you can’t put my photo on a page you are making money off of (aka advertising) either without my permission (which in most, but not all cases I would give automatically upon being asked), but apparently I am fairly alone in that belief…

Some say that I should be happy that people want to use my photos and I am getting free publicity (when they actually link back to me that is), but it becomes a whole different situation when you are getting flak about photos you took being used in manners not intended (like one I took of a leader of a foreign country a while back).

Jeremy’s objections aren’t the half of it. Creative Commons can — and inevitably will — lead to more Virgin Mobile-style lawsuits. It’s nice to get your photo in the New York Times, until you realize you’re not getting a dime for it. Let’s face it: CC is confusing to the point of being a running joke.

So photographers, feel free to congratulate Creative Commons on its fifth birthday. Just don’t celebrate by giving commercial users the gift that keeps on giving – a license to use your work for free, forever.


95 Responses to “Why Photographers Hate Creative Commons”

  1. I think that there needs to be one other thing clarified here in the Ameteur/Professional debate. The Pro / Am status simply indicates your commercial status in regard to the activity, it has no bearing whatsoever on ability. There are many amateur photographers with far greater vision and capability than many pro's I know, they simply choose to do something else to earn a living.

  2. Lee (above) writes: CC should present a license that clearly states a work shall NOT be used in any setting/way/place/forum/site where ANYTHING of monetary value/goods/trades/donations/charities/ in ANY WAY is exchanged. Including the authors/producers/creators/staff/etc of said medium being paid with money/goods/etc to create/present said medium either past, present, or future AT ANYTIME!

    This is absurdly impractical (as well as unnecessary, given the established legal definitions of "commercial," as several posters above point out). Let's say I post someone else's CC-noncommercial licensed photo on my blog and meet all terms of that license. Let's say that at some point in the future, a local publication runs across my blog, and likes my writing, and offers to hire me. In fact, they'd like me to rework one of my blog entries for an article.

    At that point, I run afoul of the last clause of Lee's all-purpose prohibition: I've leveraged my blog writing into a commercial environment...and that means the photo that I used say two years ago, in an utterly unrelated entry, suddenly is in violation of Lee's ironclad license. Would anyone seriously consider that I *should* be penalized?

    Overly prohibitive licensing schemes tend to work to stifle any use, sometimes even creation in the first place. Anyone reading Lee's proposed license, and understanding its implications, would never seek to use any such images. No exposure, no publicity, no opportunity, no creativity. (As an aside: my blog happens to be hosted by Blogger.com...so is it, itself, to be construed as a commercial entity? In a sense, I'm helping Blogger make money...simply by the presence of its brand (the blogspot.com URL), I'm increasing its brand equity and thereby increasing its value. Hell, I'm doing it right now, by mentioning the company's name. (Note to Blogger.com: pay me.)

    CC can be abused. But so can traditional copyright (just ask half the folks who played on Motown records...the half that haven't died broke already). Arguments that it doesn't work because people don't read it carefully are rather misplaced: the language is there; it's your responsibility to read it before using it.

  3. I've been reading Black Star Rising for a while now and have been enjoying the recent entries on Creative Commons.

    I've been on my own path writing about Creative Commons myself. My first article "Creative Commons: A Great Concept, I’ll Never Employ" was written in early November.
    http://www.jmg-galleries.com/blog/2007/11/12/creative-commons-a-great-concept-ill-never-employ/
    This caught the attention of quite a few people, but mostly through a rebuttal that went out "Creative Commons: A Great Concept I'll Continue to Employ"
    http://blog.epicedits.com/2007/11/14/creative-commons-a-great-concept-ill-continue-to-employ/

    As you guys have found out the punch bowl most people are drinking out of is one where photography is seen less as an asset and more of a freebie. Because most people can take photos themselves now and publish them online the value of what a photograph can be worth is completely absent. I'm running into this more and more as a developing professional and am seeing this mentality harm more of my friends in the same boat.

    I'm all for adapting to the times and feel that people should use CC if they so choose, but the mentality that seems to be spreading (photographers and publishers alike) is that because so many use CC is that you should too and if you don't you're a worse person for it.

    I decided to take my concerns on CC to the source and will be publishing an interview in my EXIF and Beyond podcast (http://www.exifandbeyond.com) the first week in January. Stay tuned...

  4. Thank you for the informative read. As a person who is struggling to have people respect my All Rights Reserved work, I have come to realize that most people don't respect the terms of any types of licensing, and think it's theirs to use as they please. While I like the huggy touchy feely community idea of CC, I don't think it works and is creating more problems than it cures.

  5. Sounds a lot like journalists bemoaning blogs. Similarly, I would say CC hurts the few (pro photographers) but benefits the many (all consumers of photography), and this post tries to obscure that fact by demonizing corporations.

    By that argument, we shouldn't use computers. The higher productivity of those things put a lot more people "out of work" than CC does. This is the lump of labor fallacy. Remember, jobs are not commodities; they are exchanges. The unemployment rate did not permanently rise when women entered the work force or when the assembly line or the computer was invented.

    I'm sure there are plenty of wrinkles to work out, but CC is still pretty new, so I'm hardly surprised.

    Anyway, thank goodness for blog comments, where a writer's lack of expertise can be quickly exposed.

  6. Is everyone going to stop sharing photos for free in order to preserve the business model of pro photographers? Absolutely not.

    So what can pros do to adapt to the new situation? There are probably some good examples from Open Source software. Programmers have been dealing with this new situation for two decades, and as a group they continue to thrive.

    1. Make better, proprietary works. That is, make software (or photos) that's significantly better than what's available for free, and make sure that differential is valuable to the market.

    2. Brand. People buy Microsoft software less because it's better than free alternatives, but because they know the name. Building and maintaining a reputation is a good way to influence buyers to pay for your work.

    3. Service. User38766 on Flickr won't be responding to email, providing extra version of a shot, or recommending graphic designers for the customer. Acting professional and providing professional service is a big value for buyers of software and of photos.

    4. Do work hobbyists don't do. There may not be a good (enough) photo of the shoreline in Sargent, TX available for free. Pros can take orders to do shots that aren't available elsewhere, and charge accordingly. Software developers do this a lot -- making alternatives for software for niche markets, or adding modules to existing Open Source software to connect with little-used other systems.

    5. Blend. Photographers can begin to take on more of the work of an AD by mixing and matching CC-licensed works with their own custom shots. For example, for a magazine piece on the Texas coast, there may be good Free photos available on Flickr for Galveston and Houston, but no good shots of South Padre Island. A CC-aware photographer could cut costs by only taking shots that need to be taken, and using his/her professional eye to fill in the rest with CC-licensed photos of similar style and quality.

    The most important thing to remember here is that it's in nobody else's interest to figure this stuff out for you, the individual pro photographer. Hobbyists will keep posting free photos, no matter how much you complain about the competition. Online services will continue to build businesses on sharing free photos, and buyers will continue to look for bargains among CC-licensed shots.

    Most of all, other photographers are competing with you in this new world. The people who figure out the new system and how to thrive in it will edge out other photographers who are sitting on the sidelines complaining. That's the way business works, and it may not be nice, but it's the way it goes.

  7. Thanks for your post on this topic. If anything your post highlights a number of misconceptions about Creative Commons licenses. CC licenses are licenses that operate within the framework of copyright and which were formulated by Creative Commons, a non-profit organisation. They are tools that have been made available for free for people who are looking for ways to make their content more readily available in ways that copyright doesn't permit in the absence of a license. There are 6 pretty flexible options which range from relatively restricted uses that prohibit commercial use and any adaptations of the original work (all CC licenses require attribution so there should always be an acknowledgement of the author of the work) to a pretty flexible license which just requires attribution.

    The licenses are pretty clearly explained on the Creative Commons site and a properly licensed work should include a link back to the CC site and to an explanation of the license. Although it can be a little complication compared to the Commons Deed version, it is worthwhile reading the legal deeds of the licenses because they detail the terms of the licenses and what you can or can't do.

    Like any content license (or even copyright itself), a big challenge is where people ignore the terms of the license or what they can or can't do under copyright and exploit content in ways that basically infringe the terms of the license and copyright. Bear in mind that when you license something using a CC license you are exercising your rights under copyright because you are allowing other people to make use of some of the bundle of rights that make up copyright. Except where you release something into the public domain, you are not giving away your rights to your work when you use a CC license. Rather you are allowing people to do some of the things copyright reserves just for you (for example, making copies, republishing a work, making money from the work and creating adaptations to name a few rights). When someone violates the terms of a license you ought to be able to take action under the terms of the license (which is really a contract between you and the person who uses your work under the license) and for copyright infringement.

    I agree that CC licenses are not necessary. There are a number of options available to people who would like to license their content and these options include preparing your own consent/license if you feel up to the task or hiring a lawyer to prepare a custom made license for your work. CC licenses are free licenses that anyone can use and which have been prepared by lawyers. They are updated to cater for new issues or deal with existing issues better (the unported licences are at version 3.0) and do a pretty good job. Like any content license you really should take some time to familiarise yourself with the terms of the license, both as someone looking to use a CC license and as a person looking to use CC licensed work. That being said, CC licenses are easy to implement and free you up to focus on what you love, creating your content.

    As professional photographers you may want to check out CC which is a supplemental protocol which was announced recently by Creative Commons. CC allows you to license your photos under a CC license that, say, permits non-commercial uses of your photos (so people could share your photos with their friends) and then also let people know how they can license your work commercially. By doing this you are creating more of an awareness of your work by letting your fans tell their friends about you and you are also establishing a framework for the commercial exploitation of your work on terms that work for you.

    I wouldn't count Creative Commons licenses out. They are potentially valuable tools for any creative professional and we, at iCommons (icommons.org), are more than happy to chat to you about how CC licenses can benefit you.

    Scott, thanks again for your post. It raises some important points about CC licenses which need to be addressed because there tremendous benefits that Creative Commons can facilitate for creative professionals such as yourself and your readers.

  8. Sorry, it looks like my comment is incomplete. The protocol I was referring to is CC (CC plus).

  9. Free content licenses aren't putting pro photographers out of work - the fact that good digital cameras are cheap is putting pro photographers out of work. Good enough is the economic enemy of excellent, worse is better, etc. You now have competition from everyone in the world with a camera. Have fun.

  10. I have to agree with Kevin to some degree. As Cameras and technology get better, more and more amateurs are creating better photos. The value of photography is going down at a rapid pace and photography as a paid profession is most definately in decline. Professionals have to be more creative than ever to seperate themselves from the amateurs. As a professional wedding photographer for 7 years, I had one occasion where I ran into a woman at a wedding reception that had a digital camera and printer with her on the spot. She was taking pictures, printing them and giving them away free. How can a working professional compete with this type of thing ? It's amazing what people will do today to avoid paying a photographer. I had one bride that was ignorant of copyright law and a few other things tell me she wasn't going to buy any enlargements from me. She was going to scan her proofs at Wal Mart to make all her enlargements. That is a blatant violation of copyright law. It happens more than people realize.

  11. I also have to agree with David Gerard. It doesn't take any talent or education to operate a camera that can figure out how to solve problems. I see people who don't have any photographic background at all setting their cameras on auto and using multi segment metering to solve many difficult problems. Their pictures may not be as good as a skilled professional and they may not be able to produce under any and all conditions. But, they're good enough for most people. That's what's hurting the pros. I have a number of friends that are working professionals and I'm hearing it from all of them. Oddly enough many of those same people were the ones praising how wonderful it was when digital first started becoming popular. I can remember one in particular who let me use his camera. He made the statement "Go ahead, take a picture. You can't take a bad picture with this camera." Does that mean that anyone that can afford to buy it is an instant photographer ? That seems to be the mentality in this day and age. Wanna be photographers are jumping in with no experience and no business plan and giving things away for free just to see if they can get published or whatever. Muliply that times millions of people who can afford a good camera and you have a real problem. Photography as a paid profession will never be the same again. Period.

  12. How many photographers have made comments here?

    Some photographers are going to like the licenses, some not. I reckon its better ecology if budgets are reduced as a result of using CC licenses, (although are open licenses being used often?) why shouldn't/can't these licenses be used? What sort of photographer is going to complain about CC licenses being used? Photographers have to also consider changes in technology, how many people on the planet now have a 5-7 mega pixel camera and an internet connection? Creative Commons might create better conditions in the long term.

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  14. Photographers who hate Creative Commons licenses need never use them.

    Those who believe in making things available under Creative Commons licenses
    use them because they choose to do so.

    I like CC licensing. It's okay if someone else does not. Someone else can even "hate" those licenses--so long as they don't try to keep me from using them.

  15. Thanks for clearly illustrating how doing away with Creative Commons solves these problems. Oh wait, you didn't.

  16. Are you kidding? What about those of us that, much like the alleged poverty stricken photographers, do other similar jobs which require things like stock photos? I'm a webdesigner that will from time to time crop a photo or use a Photoshop brush made by someone else since I don't have the spare time of a five year-old.

    Apparently I am an evil person that should be struck dead, but I consider it a derivative work; you know, taking someone's good and making more good with it. Or are you suggesting we all tightly grip our precious photos and everything we've created selfishly, hoping that no one can build off of it?

  17. Thanks for clearly illustrating how doing away with Creative Commons solves these problems and why do photographers hate Creative commons.
    ______________________________
    Michel
    Link Building

  18. Thanks for clearly illustrating how doing away with Creative Commons solves these problems and why do photographers hate Creative commons.
    ______________________________
    Michel
    [url=http://www.widecircles.com]Link Building[/url]

  19. In Europe we have the Convention of Berne : any artistic work that has been published first in Europe is automatically protected worldwide. You can find the link to the document here : http://www.leblogdelamirabelle.net/article-26688136-6.html#anchorComment
    So I don't even have to add anything like "Copyright protected". I don't like CC and I won't use it !
    If someone is naive enough to think just because it's on the internet it's free, well, he/she will be surprised ! Coz everything's public too so it doesn't last long until an artist finds out his/her work has been stolen for commercial purposes.

  20. CC is needless cause all kind of licenses or use can be granted on request and therefore more controlled.

    CC is a fake invention of the commercial market in an attempt to break through the solid copyright by it's rules, the more rules, the more abuse, growing tremendously.

    CC tends to mediocrity, the selfish amateur who is rich enough to give it away, affording himself on top free publicity in disfavor of starting photographers hoping to get some support for their heavy investment.

    CC is in no way a threat to professionals, the true amateur is a nightmare to pro's as he knows no limit in creativity kicking trendy pro's against their empty acrobatic images while photography becomes a total art, the time of the nice Marilyn Monroe's is gone to make place for concepts in depth.

    CS as common sense puts CC in their polluting context beyond any expertise.

  21. Thank you very much for this informative article. One of the most basic rights of copyright is the author's right to determine when, where and IF a work is displayed or reprinted. I grant licenses to republish my work on a case by case basis only. So far I've been fairly successful in controlling the distribution of my work. In the cases where my work has been republished without my permission, the blogger was quick to remove my work upon notification of copyright violation.

    I suffer no illusions that I can protect my work from being snipped from the web, but I can control the license.

  22. I love Creative Commons, i love the devaluation of photography, and here is why:

    In order for technical progress to happen, research must be financed. Capital must be moved away from established businesses and into risky new technologies. This only happens, if the established businesses start to reject capital, because they start to produce cheaper.

    In other words: The rate, at which we develop new technologies derives from the rate at which older technologies are devaluated. Thats why i love Creative Commons, Open Source and similar philosophies.

  23. Creative Commons is simply a legal framework for defining usage of copyright material. It can range from "you can't do anything with my content without permission" to "you can do anything you want with my conte". It's up to the owner to decide which restriction to use or even whether to use CC. If owners like CC they should also consider Youtils (www.youtils.com) which extends the CC model by offering online image usage statistics.

  24. Anyone ever heard of http://www.useplus.com?

  25. The main problem is that, everyone wants to become a photographer, but no one wants to learn the business of photography...

    "If I take enough photos and post them everywhere, someday I'll get paid..." And in the meantime, because of this, the business of photography is getting less and less lucrative...

  26. You miss the easiest way to protect your visual work, I'm afraid--be it as a photographer, painter, or any other visual artist. Control the resolution. If what you license under CC is thumbnail size and specified as so, you'll still generate the interest, but if you are careful with who gets the full resolution images and make sure you control that you're the one compensated for it, no problem. Putting full res images online is inviting theft, no matter how many notices are posted, while low-res images either will not be stolen, or at worst only help generate buzz. "There's always a low-tech solution to a high-tech problem," and that solution is often so obvious it's overlooked.

  27. I post a variety (but not all, of course)of my photos on Flickr, so that others may enjoy them. But I do NOT use Creative Commons licensing, because many of these same photos are for sale on my professional website, and I don't want to create confusion for myself or anyone else.

    I don't care if it is my grandson, the neighbor's dog, or a professional photo shoot, EVERYTHING is strictly copyrighted. And I have been able to successfully "prosecute" copyright infringement (most recently on Facebook) by doing so. That being said, "if it ain't broke, don't fix it." If you want it to stay yours, and be profitable, don't share under CC.

  28. A very informative and interesting article. I must say that as a photographer I never liked the idea of Creative Commons from the fist time I heard of it. I will make an image of mine availiable free of charge for a worthy cause, but apart from that, forget it. I'm sorry to say that experience has taught me that if you don't charge, most user of your images will not value you or your work. (Lots of you reading this knew that, anyway...)

  29. The creative commons is a great way to have your photography stolen, used without your permission or knowledge, and without payment to you. I don't know any pro who actually uses that crap.

  30. Attribution - noncommercial - share alike covers all your fears... even the one with political party you despise. If they make a poster out of your photo, you're free to take it and mock it. :)

  31. Great article, which concurs with my previous concerns regarding CC. I never used CC because when I read about it, it seemed there were too many loopholes for exploitation of creative works.

  32. Your complaints about creative commons licensing are valid. However, as someone who is militantly in favor of creative commons licensing, there is another point of view: For years I sought access to a database of stock photos that was priced fairly. Even in the early 2000's, I was willing to pay three or four hundred dollars a year for access to a quality database for use in education. Instead, stock photo, digital databases insisted on per-photo pricing, with average prices ranging between $20 and $50 dollars per photo. This was not remotely reasonable for educators and other not-for-profit users. Thus, I and many others, out of financial necessity, began to take and license as many stock photos as possible via Flickr and other online, photo-sharing sites. Today, my photos appear in thousands of online and hardcopy publications. Indeed, through the work of countless amateur photographers, educators around the world are able to build fully licensed lessons and presentations at zero cost. This situation did not have to evolve as it did, if stock outlets had developed fair pricing strategies ten or fifteen years ago.

  33. This is a little off-topic, so readers interested "only" in the original matter might skip my post.

    While I appreciate the posts from eg shane selman and paul jacobson because they actually address the matter and try to explain differing p.o.w.s I still don't understand why NOT ONE SINGLE exchange of opinions remains free of the usual "you all idiots" posts.

    BUT this time "anon"'s post hit me so hard that I didn't even get angry, I just thought: Has anybody yet thought of making an exhibition of those comments?

    I imagine those usually one-liners like the one from "anon" ("your am iodiot") printed b on w on 20x 30 canvases and a caption quoting the URL and the subject of the actual matter.

    I think it produces two results: it draws attentions to the articles that often as in this case try to come up with solutions to problems of our ever-changing technology in a society of never-changing human beings (because still instinct driven - as we where some thousands of years ago)

    AND it may change the way "these" people think of themselves. Just because there is nobody that will "punish" them, they just "piss" everywhere instead of using this "freedom" to express their thoughts freely. I don't get it.

    BUT what about my idea with the exhibition?

  34. Great article. Could not agree more. -z

  1. [...] Why photographers hate Creative Commons [...]

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  3. [...] enforcement of the guidelines is difficult to control and is explaining very well in the blog by Scott Barodell. under: Uncategorized « Thing [...]

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  8. [...] all photographers are happy about Creative Commons, feeling that it takes away from stock photography sales. It is true that many news outlets and [...]

  9. [...] the system isn’t perfect and there are arguments for and against the use of CC licensing, the truth is that something is better than nothing and CC licensing [...]

  10. [...] Baradell, “Why Photographers Hate Creative Commons”, Black Star Rising, http://rising.blackstar.com/why-photographers-hate-creative-commons.html (geraadpleegd op 30 januari [...]

  11. [...] Through CC, hundreds of thousands — if not millions — of photographers have thrown this right away forever. (Remember, CC says that once you choose a license for your work, it’s irrevocable.) Photographers are generally doing this with good intentions or for idealistic reasons. But the end result is that you are building a system enabling commercial buyers to use your images without paying for them.”  -http://rising.blackstar.com/why-photographers-hate-creative-commons.html [...]

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