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.