After the jump, more of Dan’s rantings followed by more of my rantings, hopefully to end with a meaningful conclusion… But no promises.

Dan Heller is a prolific stock and travel photographer and a somewhat prolific writer as well. His experiences with the Creative Commons began in the software and technology arena, but his latest article is very much aimed at the stock photography business world. Although it gets off to a good start and presents valid and convincing arguments from a business perspective, it soon begins to lose its footing and creep down a slippery slope into generalities. It is there that I have the most to say, so I will preface this essay with the concession that the Creative Commons licensing structure may very well be eroding the business of selling photographs, even though I think Dan’s reaction is somewhat alarmist even in that regard.

Before I begin to wax philosophical, let me examine the first concrete example Dan provides of the Creative Commons doing harm to photographers and their customers. He describes a hypothetical situation in which a photograph is misappropriated from a private photographer who has withheld use rights (“all rights reserved”). A thief (described in this case as a “12-year-old”) removes any watermarks or copyright notices and places the image on Flickr or another photo sharing site under a Creative Commons license. A business with a need for such a photo simply uses it, conforming to the rules of use set out in the Creative Commons license under which it was (illegally) published.

The original photographer gets wind of this wrongful use and takes legal action against the business, ultimately winning damages up to $30,000 in a clear case of copyright infringement. In Dan’s example, the thief gets away clean because chasing him down would probably cost more than what might be recovered from him, though he is still legally culpable. The business, having been burned in court for many times the cost of legally licensing the image, sets a policy of avoiding Creative Commons work from then on. It’s a pretty good example, except for a few glaring holes:

• Any photographer who posts his work online at a resolution that would be considered even remotely usable to a business customer is setting himself (or herself) up for disaster. As I have stated in previous articles about watermarking (Protecting Your Digital Rights), the low pixel count of an online gallery image should serve as adequate protection against any use that may otherwise be a considerable source of licensing revenue. For example, a kid who prints out your gallery image and wallpapers his bathroom with it is not someone who would have paid you fair licensing fees in the first place. Similarly, a business willing to place your photograph at web resolution into any publication of merit is not likely to be a discerning and profitable client for you. Fundamentally, you have a responsibility to police the wrongful use of your work, but from a pure business perspective, misappropriated web-resolution gallery images shouldn’t be considered a financial or professional liability, even in the cases where your watermark or copyright information are wrongfully removed.
• Dan seems to imply that by avoiding any Creative Commons licensed image, the business in question has now become a less likely consumer of photographers’ work. It seems more plausible to me that they will avoid using images off of photo sharing sites altogether and become more likely to purchase licenses directly from photographers or agencies, which is actually a benefit to those photographers who sell independently and through organizations like Comstock, Getty, or iStockPhoto. In this way, Creative Commons has benefited professional photographers even if it has damaged its own goals.
• If one of the goals of Creative Commons was to provide a more robust licensing structure for salable work such as stock photography, then they have surely failed themselves in that regard. My interpretation of their goal, however, was to catalyze the evolution of culture by aiding creative people in sharing their work with others who may be apt to build upon it or to disseminate it further. To my mind, the Creative Commons has little place in business, and to claim that they have harmed their integrity by doing a disservice to the business of selling creative work is to overlook the nature of their organization.

Dan goes on to say:

Photographs only take 1/250 of a second to make, and they can be made available online instantly. There are billions upon billions of them online, with millions being added daily. Monitoring and enforcement of CC licensing for photos is unrealistic, unmanageable, and highly prone to both non-compliance by licensees, and to fraudulent attributions by others. This, in turn, degrades the integrity and reliability of the CC system, thereby compromising confidence in it.

First off, as I mentioned in bullet #1 above, any work placed online in a form that is usable to a discerning potential customer, no matter what license or rights for use are expressed in, on, or around the image, is a gaping hole in the hull of your ship, pure and simple. Second, the monitoring and enforcement of any licensing for virtually any work is functionally unmanageable. If you presume that people are misappropriating your web-resolution images for any legitimate use that could represent lost revenue for you, then you must face the possibility that this is already happening to your “all rights reserved” images, because the only thing protecting them is probably a watermark and a bit of EXIF data. This is why technologies such as Digimarc were created; to track the potentially hundreds or thousands of anonymous misuses of your intellectual property, no matter what license was applied to them.

So Dan’s point is actually that restrictive Creative Commons licenses are harmful because they are easily confused with less restrictive ones, especially to an increasingly technology-bewildered marketplace, whereas “all rights reserved” is very clear. I say again, Creative Commons has little place in business, so if you are selling your work, don’t use a Creative Commons license. Reserve all rights and make individual exceptions where appropriate.

Dan then asserts that Creative Commons is simply adding noise to an already complicated world of digital law. He may be right about that, but his reasoning is tenuous at best. The example he uses is from a talk given by David Pogue, a journalist for the New York Times. Pogue essentially asks a group of 500 people whether they think downloading a copyrighted movie or album is “wrong,” and only a handful of people raise their hands. In a world where 1% of people recognize the legal liability of copying creative work that is under full and complete reservation of use rights, how can Creative Commons possibly make the situation any worse? Assuming that Pogue’s 500 people were a statistically representative group, that would mean that 99% of the American population will copy your photographs without a second thought, no matter what you do.

Creative Commons is meant to grease the wheels of the creative machine (notice how “creative” is in their name?), to allow your work to become a part of something more than itself, to contribute to derivative creations, to promote yourself through the spirit of sharing. Dan says that photographs “serve no foundation for anything—they are their own beginnings and endings at once, and provide no opportunity for new development, services, or growth.” Such a naive, business-oriented statement deeply insults me as an artist. Of course photographs serve as a foundation! Not only are photographs inspirational to artists in photography and in other media, but in this atmosphere of digital art, the media has become much less important than the subject matter. Photography as an art form is more pliable and evolutionary than ever before, and we would be fools to try to resist that.

In his article, Dan goes on to say that Flickr is damaging our industry by promoting the use of Creative Commons licenses and doing a fairly ham-handed job of explaining what the licenses mean and what risks are inherent in using them. On that count, I am wholly in agreement with him. I think that Flickr was originally created as a sort of “MySpace for pictures” and was expected to be populated with careless snapshots of kittens playing with balls of yarn. It surely is populated with a great deal of such images, however, as its popularity has skyrocketed it has drawn in countless very serious hobbyists and professionals with intellectual property to defend.

Now I get to quote myself, which is always fun:

It’s always, always your responsibility as a creator to understand the full extent of the concessions granted by a license you release your work under. If you decide you want to use a Creative Commons license, you should actually read it. Not just the “human deed,” but the full text. If you don’t understand the license… Don’t use it!

Does Flickr bear the burden of explaining these licenses to its users? Yes, I think they are responsible for being conscientious communicators of the message of Creative Commons and of the repercussions and/or implications of selecting certain options on their own website. Are they legally vulnerable in connection to the way they handle the licenses now? Perhaps. Who’s fault is it if someone’s photograph, posted under a free-use Creative Commons license is used in business for significant financial benefit of a third party? The photographer. As a creator, you have the last word when it comes to the use of your work, so be as cynical and discriminating as you can bear to be.

I do not believe that the existence of the Creative Commons, nor its use by photographers and other artists, is detrimental to any professional creative industry. Though it may add confusion to an already troubled and labyrinthine forest of copyright law, and may seem a target of convenience for burgeoning professionals who mistakenly allowed their work to be used without consent, the core mechanics of licensing creative work have not changed. This is both an exciting and confusing time for digital media creators, but it remains our responsibility to act with informed judgment.

Before I close, I would like to thank Dan Heller for taking the time to write such a thorough analysis of Creative Commons from the stock perspective, which was a viewpoint conspicuously missing thus far from most discourse. His article did serve to expose a lot of interesting licensing issues that are hot-button topics for professionals nowadays, especially anyone participating in Flickr as a promotional tool.

This month the debate over Creative Commons licenses in photography flared up once more, with Jim Goldstein declaring that he would never use CC licenses, and Brian Auer retorting that he had before and would most certainly continue to in the future. Underscoring the points made by both of these fine fellows was an interview I read with author Cory Doctorow about giving away free electronic versions of books that brought many relevant points into play.

I’m revisiting the topic here today, not simply to agree or disagree with anything Goldstein, Auer, or Doctorow said, but rather to paint a picture of why I think the Creative Commons plays a very valuable role in photography in today’s copy-and-paste culture and why you should be thinking very seriously about how it can help you.

Creative Commons?

If you haven’t heard of them, the Creative Commons is a group focused on developing new “rights management” tools for creators. Whether you’re an author, painter, musician, or photographer, Creative Commons has developed “licenses” to allow you to more easily define the prohibitions and concessions you desire to make regarding the use of your work by others.

Fundamentally, Creative Commons licenses were developed for creators who wish to allow uses of their work that typical “all rights reserved” declarations prohibit. If you never want anyone to use your work for anything without asking you, you probably don’t need the Creative Commons. You should probably also turn around and walk straight back through the last few decades because you would be ignoring everything that has changed since about 1980.

Read more about the Creative Commons and their goals on their website.

Copy-and-Paste Culture

Cory Doctorow put this so elegantly that I will use his words:

It’s the 21st century, there’s not going to be a year in which it’s harder to copy than this year; there’s not going to be a day in which it’s harder to copy than this day; from now on.¹

Before I go further, I want to make it clear that I’m writing this opinion from the perspective of a fine art photographer. If your particular photographic enterprise is closer to stock or retail portraiture or industrial/commercial/product work, much of what I’m about to say will simply not apply to you. I want to give more than one perspective, but my opinion is very much formed from an artistic point of view.

Doctorow continues,

… if your business model and your aesthetic effect in your literature and your work is intended not to be copied, you’re fundamentally not making art for the 21st century.

Whatever industry you’re in, his statements are true. Consumers of our creations have historically fought for the ability (if not the right) to copy and redistribute everything we make. The legal entanglements of Sony’s Betamax format greatly publicized the push and pull between creators and consumers in 1984 when Sony was taken to court by Universal City Studios. Only the technologies have changed since then; people will always be excited about multimedia creations and desire to share them, remix them, and pass them around.

If you accept the proposition that it’s culturally and socially beneficial for creative works to be made (and as photographers, I could not imagine a world or a situation in which you wouldn’t), then you must also recognize some of the hurdles faced by creators wishing to build upon the works of their forebears.

I won’t go deep into detail; for those interested in reading a truly revealing look at the state of copyright law and how it affects culture and creativity, I highly recommend reading attorney and Stanford law professor Lawrence Lessig’s book, Free Culture.

So, if you accept all of that, and if you further accept Doctorow’s idea that people are going to make copies (no matter what you do) and that remixes and mash-ups are fundamentally good for culture (and even for you, personally), your only concern is how to maximize your recognition and profits gained from a creative work without strangling the life out of this copy-and-paste culture we live in.

Some Rights Reserved

What Creative Commons does, in essence, is formalize the concession of certain usage rights to creative works such that the rights yielded and the rights retained are drawn up in defensible legal mumbo-jumbo.

This allows a creator to say, for example, “You may use my work to create new, derived works, and you may distribute those as you see fit, provided that you credit me and that your work remains under the same usage rights as this one.” Some rights are reserved.

I made the image to the right within the “Mansfield Training Center,” an abandoned hospital for mentally retarded children located in Mansfield, Connecticut. It came to my attention almost a year ago that someone had linked to my gallery of images from that hospital within the Wikipedia article about Mansfield’s “sites of interest.” It turns out that I have one of the most “definitive” collections of photographs from that site from recent years.

I came to the decision that I would release one of my images from the collection under a Creative Commons license, which is required for all multimedia content on Wikipedia, so that it could be displayed alongside the article and increase my exposure as a local artist. I chose the Creative Commons Attribution ShareAlike license (I overlayed the logo and byline on this image for effect). This license permits derivative works so long as I am credited and the resulting work is released under the same license.

Has this gained me a landslide of website traffic from Wikipedia? Not really. I am of the mind that any amount of exposure is good for business and for your reputation. I believe that being cited in this article (the original citation was added by someone else during their research) increases my overall credibility. Yes, I do think it was worth it.

Giving It All Away

One of the popular arguments against the Creative Commons paraded about online is that these licenses may expressly permit uses you, as the creator, don’t agree with. One recent news item involves young Alison Chang whose picture was taken by a young man in her church group and placed on Flickr under a CC attribution license. The image was snagged and used in a billboard campaign by Virgin Mobile in Australia, which then sparked a legal claim and discussion about licensing of images on Flickr.

Here are some things you need to know:

• It’s always, always your responsibility as a creator to understand the full extent of the concessions granted by a license you release your work under. If you decide you want to use a Creative Commons license, you should actually read it. Not just the “human deed,” but the full text.
• If you don’t understand the license… Don’t use it!
• As Dan Heller has frequently advised in discussions about model releases (this relates specifically to the Alison Chang situation), it is the responsibility of the person or persons putting your work into use (e.g. the publisher) to secure model releases. If you did not get a release when you made the image and the publisher doesn’t ask, it is not your problem.
• If you place your work under a license that permits commercial use and the image is used commercially, you have no recourse. If you did not secure a model release for individuals pictured therein and they decide to sue the publisher… That’s none of your business!

It is always surprising to me how many people post their images on various sites and in online communities without understanding the terms and conditions. As an artist, it is your responsibility to protect your work from misappropriation and misuse, and that means reading the terms and conditions of any sites you post your work on.

When Flickr asks you what type of licensing structure you want to use for your photographs, choose wisely. If in doubt, select “all rights reserved.”

It is not the responsibility of the Creative Commons to make abundantly clear to you what each of their licenses will do. It is your responsibility to read and understand them before you put them to use. It is the same with any contract or agreement; ignorance is no excuse.

Conclusions?

I still believe that the judicious use of Creative Commons licenses can allow you to give back to the artistic community and to our global culture in a way that nothing else can. By selecting licenses carefully and releasing certain works through certain avenues, you can be assured promotional benefits as well as the satisfaction of having contributed to the world.

Using Creative Commons doesn’t mean you stop making money or stop getting credit.

1. Cory Doctorow on kottke.org

Although I believe the ranger overstepped his bounds and acted with undue suspicion under the circumstances, my colleague and I reacted—in my opinion—in a completely appropriate way. We were very polite and understanding of the issues at hand and we recognized that Tennessee might do things a little bit differently than Connecticut. For example, in Tennessee, photographers get frisked under suspicion of poaching.

Anyway, it’s a good idea to hold up your end of the bargain if you do get approached by an officer of the law, and to act in a way that reflects positively on yourself and on all of us as photographers. Especially if there is a video camera in the officer’s car…

Yesterday, I ran across this article, 5 Things Photographers Should Do When Confronted By Police. It contains some helpful tips and might be useful to you in your travels.

It’s also a good idea to know your rights in these situations, and to help you I will once again point you toward Andrew Kantor’s Legal Rights of Photographers (pdf)¹ guide, a somewhat abridged yet very straightforward and understandable overview of your rights as a photographer (at least in the United States).

For a slightly more technical view, you may wish to read The Photographer’s Right by Bert P. Krages II (attorney at law). Although no advice given by an attorney from outside of your state could be said to be formal, anyone out there from Oregon just struck gold. For those of us who aren’t from the pacific wonderland, at least you can say that this advice was cobbled together by someone with actual legal training.

If you want to dive in yet further, please do visit the forums at PhotoPermit.org where you can read all about your rights, current events, and first-hand accounts of being hassled or confronted by authority figures both various and sundry. [Edit: Apparently photopermit.org has now been replaced by a spam site. Condolences.]

1. Linked with permission. If that copy is down, get it from me

In the Great Smoky Mountains this past week, I got a very personal introduction to one way our photography can greatly disturb the environment and so today I will talk about it.

This is my contribution to Blog Action Day, joining 15,000 fellow bloggers in raising awareness of environmental issues. (Yes, I know it was yesterday. Better late than never!)

National parks are truly environmental treasures. Not only does the National Park Service protect the land, geology, and flora of the parks, but it also studies and assists the indigenous creatures that live in each of its nearly 400 sites. Because these locations are more readily accessible and better documented than the untamed wilderness (of which there is very little remaining in America), and because they were preserved for their unique beauty and significance in the culture and history of this country, they are obvious destinations for outdoors photographers.

While photographing in the Great Smoky Mountains National Park, which straddles the line between Tennessee and North Carolina, I was made forcefully aware of some of the dangers these parks face and how important it is that we contribute to their protection.

Painting the Night

“Light painting,” or using flashlights to illuminate objects during long exposures in the dark, is one of the staples of outdoor photography, and I think it’s a fairly common practice; you’ll see it used by The Nocturnes and others who are into making images after dark. Having used the technique to to great effect in Death Valley and in Yosemite, it went without saying that my colleague Chris and I would find such opportunities in the Smokies.

Our plan was to enter Cades Cove after dark and scout out a location. Ideally, we wanted to hike down to the Primitive Baptist Church, which is 2.4 miles each way from the public parking lot. You can’t drive down the road because the gates leading into the Cades Cove loop are locked at sunset. After walking for some time, we decided to stop and set up along a barbed wire fence and get a feel for the night. The fence stood between the narrow road and a large field with a solitary tree standing a few hundred feet away. It seemed a good enough spot with a lot of visible sky, so we set up our gear.

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My composition placed the faraway tree front-and-center with the barbed wire fence in the foreground, which I thought would give a nice sense of depth to the image. After exposing for twenty minutes, occasionally yelling out “Hey bear!” to make sure any of the 1,600 black bears in the park would know we were there¹, we painted the fence with a headlamp and I decided I should paint the tree with one of our 1,000,000 candlepower lights.

We made two exposures this way when Chris saw bright lights at the top of the road by the gate. There are only two major fears photographers have in the woods at night: one is the fear of being mauled or eaten alive by hungry black bears preparing for hibernation, and two is the fear of someone spoiling your 45-minute exposure with a careless wave of their flashlight. The second fear, of course, is much more gripping. The lights proceeded toward us. Knowing that they had passed the locked gate, we could be sure it was a ranger. But what business might a ranger have in that dark place at that hour? Surely we were simply two benign photographers walking the trails and roads as any other visitors might.

Touched by a Ranger

“Step into the road where I can see you,” came the ranger’s commanding voice. The sound seemed to come from a tall, black void in the wall of pure, blinding whiteness pouring over us from the seven lights on the ranger’s car. We did as he asked. “I need you to empty your pockets. Take everything out and put it on the ground and turn your pockets out.” A strange request; perhaps they check random people to make sure they don’t have contraband or something. Yes, that’s it, and this ranger decided that the best place to look for tourist pranksters would be down this gated road in the inky black of night…

Before I knew it I was standing with my hands behind my head getting thoroughly and deeply frisked by a national park ranger. For those casual readers out there among you, I am not a man who has even once been suspected of anything by the Powers That Be, let alone deeply frisked. A minute later I’m sitting by a tree with my legs crossed watching the same fate befall my partner. What was to become of us?

“Are there any more flashlights here? Do you boys have more flashlights?”

“Yes sir, there is one there by our bags,” I replied. He fetched it. Turning now to my associate, he poised the question,

“Do you what’s going to happen if I shine this into your eyes?”

“I’ll be blinded,” my pal answered.

“That’s right. You’ll be blinded. Now how do you s’pose an animal is going to feel when you shine this at them?”

Thus the story began to unfold. The ranger explained that “spotlighting,” or shining bright lights into the woods and such, is frowned upon. Moreover, such behavior is indicative of poachers. He went on to say that using headlamps to walk and shining lights briefly into the woods if an animal might be approaching is OK, but shining one million candlepower flashlights across fields is more like what people do when they’re searching for some wild game to illegally sneak away with.

Why anyone would poach animals 500 yards from a ranger station (as we were) is beyond me, and the question of exactly how extraordinary a power trip that ranger was on still remains. Nevertheless, each national park in America is permitted to set their own rules of behavior governing the use of artificial light and the points made by the ranger that night were valid ones.

Take it from me, you do not want to be rigorously patted down by a ranger in the middle of the night, so be sure to ask the rangers at any park you’re visiting about applicable regulations. Remember also that you’re not alone out there. We all have a responsibility to remain mindful of our impact on indigenous wildlife and to respect the park as their home… Because that’s what it is.

1. Black bears don’t want trouble, but they just hate surprises.

I hope you read the subject of this article and gasped. I hope that your first reaction was indignance or perhaps anger. I share your feelings, but we photographers continuously deal with a level of public distrust and scrutiny that should worry us all. It’s important, whether you’re an amateur or a professional, to know what your rights are and to stand up for them so they don’t erode into nothingness, leaving us all standing there with our cameras and nothing to point them at.

Today I’m going to talk about photographers’ rights, a topic discussed in many other forums and at great length. My focus will be on United States laws: what you are legally permitted to photograph; what, if any, argument you should be willing to put up with from certain officials; and some of my own experiences.

Please come in, photography is allowed.

What Are Your Rights?

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The first thing I’m going to do is point you in the direction of Andrew Kantor’s wonderful Legal Rights of Photographers (pdf)¹ guide. Andrew breaks our work down into its major (legal) components and explains what rights we have to photograph, to publish the work, to withstand accusations, etc., all with clear examples. It’s really the best overview of photographers’ rights I’ve seen yet.

One of the biggest legal revelations I took away from Andrew’s guide is that it is OK to photograph while trespassing, even if the trespass itself is illegal. Many of us have trespassed here and there to get certain shots, and although I am not going to come out and publicly condone it, it’s reassuring to know that the work stands on its own and won’t come back to bite me.

Problems I’ve Had

When I first became serious about art photography (which is what I’d say I do), my friend Chris Blake and I would travel to various public state parks and reservoirs and shoot for entire afternoons. It’s good exercise and being outside is always pleasant in the summer months, so we did it a lot. I wouldn’t say I came away with many timeless masterpieces, but it was excellent practice. Once, while we were photographing some type of a drainage pipe at Reservoir #6 (its name stands in triumphant evidence of the municipal government’s creativity) in West Hartford on a beautiful spring afternoon, a pickup truck came rumbling up toward us, stopped, a man got out, walked over to where we were standing, and informed us that “they” didn’t like people photographing around the water source. He mentioned something about “terrorists;” I don’t completely recall. He didn’t make any overt threats and he seemed personally disinterested, but he said he was asked to tell us this and that we should really stop if we didn’t want to make trouble for ourselves.

Having read Andrew Kantor’s Legal Rights of Photographers, I understand now that it is legal to take photographs within the reservoir grounds because they are open to the public and that it’s legal to publish them as well. Even when asked to leave (which we weren’t), at which time you are officially trespassing, you can still take photographs and use them however you like.

$image:right/Experimental/BradleyInternational/Area51_5.jpg$

Another, more serious incident occurred along Route 10 near Bradley International Airport. Chris and I went out for a photographic adventure and wound up in a public parking lot at the head of an arrival runway at dusk. The plan: to photograph planes landing over the chain link fence. Photographing aircraft, even from a public vantage point, is one of those “gray areas” in photography; even though it’s legal, you’re probably asking for trouble. (The image to the right was made that night.)

I believe (though IANAL) there are clauses that prohibit the photography of things like submarines, military helicopters, etc., even in public. It’s one of those “national security” issues; the same reason why dry docked submarines always have their propellers covered (the design of the propellers is top secret, even to most submarine engineers and crew members). Privately owned and operated aircraft, however, fall into no such category and there are no laws that expressly prohibit photographing them. Still, you’re going to get hassled. And we were.

$image:left/Experimental/BradleyInternational/PerfectLanding.jpg$

To the credit of our local law enforcement agencies, it was only a matter of perhaps fifteen minutes before a state police trooper rolled into the parking lot and asked us what we thought we were doing. We explained that we both have photography websites and that we were taking some artsy photos, etc., etc. Signs posted around the parking lot clearly denote that it is public and not the property of the airport, so we weren’t trespassing. He said he was certain we meant no harm but that we would have to stop.

We did stop, by the way, because neither of us wanted to spend the rest of the night in the local police station explaining ourselves and missing out on other opportunities. Perhaps today our reactions might differ. The image to the left was also made that night.

Some people are more persistent in the face of authority figures, and that’s probably a good thing if they’re asserting their rights. Still, you must always weigh the benefits of defending your rights against the perils of doing so.

Conclusions

$image:right/Places/MansfieldTrainingSchool/ColdStorage.jpg$

At the end of the day, you are the risk-taker. It’s up to you whether you want to press your luck within the law or stray from strict legality to achieve your creative ends. Whatever the case may be, the most important tool at your disposal is full knowledge of your rights.

As I’ve mentioned in previous articles, some of my most popular and most searched photographs are from within the Knight building of the Mansfield Training School, a location I was most certainly trespassing upon when I made them (my favorite one from there is to the right). I think it was worth the risk.

1. Linked with permission. If that copy isn’t working, download it from me.

That said, everyone has a different threshold of charity, and that threshold seems to be linked to their success and recognition. Completely unrecognized people give things away to gain exposure. After achieving success, they often stop giving things away to maximize their gains. Then, if they become very successful, they may begin giving things away again because they can afford to.

Because there are so many nuances to the ways in which creators may wish for their work to be used by others, the Creative Commons emerged, creating whole new gradations within the copyright system. Now, rather than saying “all rights reserved,” we can easily say “some rights reserved” and call upon a pile of pre-written legalese. Good idea?

Understanding Copyright

Fundamentally, copyright is an agreement among the people to treat creative works in specific ways. Historically, copyright established a monopoly over a creative work that its creator could wield to derive (usually financial) benefit from it, thereby coercing others to create works of their own. Without getting mired in the specifics of copyright law, the intricacies of which have been explained at length elsewhere, the whole shooting match was designed to safeguard creativity in modern society. In the words of Lawrence Lessig¹:

The owner of a still live copyright, that is, one that has not yet expired, controls the rights of others to produce derivative works. … At least until that copyright expires, though the idea of copyright expiring seems itself an expired idea.

Under copyright law, the creator of an original work automatically receives full rights to its use. Only through a specific exception can certain rights be surrendered and others retained, at least until the copyright lapses. In America’s litigious climate, even such a simple thing as stating “you may use this song of mine to make remixes but you can’t charge money for them” requires pages of legalese to avoid ambiguity. That’s where the Creative Commons comes in.

Understanding the Creative Commons

Creative Commons “provides free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry.” Their chief contribution is in the form of “licenses,” which are basically rules of use for creative work stated in defensible legal terms, written by lawyers. Using their handy license selection questionnaire, you can simply choose the rights you wish to yield to others and the appropriate Creative Commons (or “CC” for short) license will be provided to you.

There are three major categories of rights that CC licenses allow you to control:

• Attribution
• Commericial use
• Derivative works

Attribution means receiving credit, or some indication of ownership. Typically that means a piece of accompanying text containing your name, and possibly the same information in the metadata. Attribution is polite and it appears in the license only because you may wish to waive it, and for completeness. I hope that all of you out there give credit where credit is due without being forced to by a lawyer.

Commercial use is exactly what it sounds like. A work tagged for commercial use means you don’t mind if someone uses it to make money on their own somehow, and one tagged for no commercial use means the opposite.

Derivative works is an interesting twist on copyright law. Under US copyright law, derivative works are almost always permitted, and disputes over whether certain works are suitably different from the originals to be considered “derivative” or whether it’s plagiarism has typically been a decision for the courts. This right permits or denies end users from deriving new creative works from yours, period. In my opinion, denying derivative works is contrary to creation as a whole, but CC leaves the ball in your court.

There is another license attribute used in two of CC’s six major licenses called “share alike,” which means that work based on yours must carry the same (or suitably similar) license as yours. This is much like the idea of the GNU General Public License (GNU GPL) for open source software.

Each of these categories can be toggled “on” and “off” using the CC license selection questionnaire, and each combination of desired rights has its own CC license, presented in full, specific, defensible legal jargon. They even give you pretty little buttons to use on web-based copies of your work that link to the license’s page on CC’s website and announce that you have released some (or none) of these rights to end users.

In addition to the buttons, there is a “deed” page on CC’s website for each of their licenses, which spells out in very simple and easy-to-understand language what you are permitted and not permitted to do with work carrying that license. Each deed is then linked to the full text of the license for the hardened lawyers among us.

If You Love Something, Let it Go…

I believe in sharing. In my Web Rules for Photographers article, I stated that “sharing is caring,” and I stand behind that. I am not anti-capitalist, nor would I deny anyone the fruits of their labor, but sometimes a little bit of giving goes a long way.

Let me break this down from a photographer’s perspective. I had the opportunity a couple of years ago to photograph the abandoned and decrepit Mansfield Training School, which was a hospital for mentally retarded children in Mansfield, Connecticut from around the turn of the century until about 1993. Of all my photographs, the ones I took inside that place seem to be the most popular, and generate the most traffic from web searches simply due to the scarcity of photographs and information about the place. I have been contacted by several people looking for directions to it and more information about it.

People who search Google for “Mansfield Training School” inevitably find my gallery, and I think that’s pretty sweet. Some time later, as someone was editing the “Mansfield, Connecticut” article on Wikipedia, they thought to mention the Mansfield Training School in its “Places of Interest” section, and linked to my gallery page, undoubtedly found in a search.

When a friend of mine pointed out that I had been linked from Wikipedia, I immediately thought two things simultaneously: 1) that’s really cool, and 2) can I make more out of this? Contributing to Wikipedia is one of those things that can be helpful to you and to others at the same time, and I like helping myself at least as much as I like helping others, so I decided to contribute more. What I actually did was to select a photo from my Mansfield Training School gallery and place it on the Wikipedia article page.

Wikipedia requires a fairly comprehensive copyright history for items submitted to its site, and for good reason: used as a reference, Wikipedia’s media items should be at least as free (as in speech) as items published in traditional print encyclopedias. To that end, they require a selection from a fairly long list of licenses from popular sources including Creative Commons, GNU, and others.

What this meant for me was that I would have to give up some rights to that particular work in order for it to appear on Wikipedia. Aside from the intangible exposure I would gain from it, and of course my own sense of altrusim, I hoped to see a bit of traffic from my submission.

Being the generous man that I am, I selected the Creative Commons Attribution-ShareAlike 2.5 license (the link leads to the “deed” page, conveniently available in about 30 languages), which means that you are free to copy, distribute, transmit, remix, and adapt the work as long as what you create from it carries the same license and that I am credited for the original if displayed in any way.

I think that releasing a portion of your work in this way, especially in a high-traffic and high-exposure location such as Wikipedia, can definitely pay off in terms of recognition (both for the work itself as well as your reputation for generosity) and help to promote your other work, to which you retain all rights. Give a little, get a lot.

The way I see it, if everyone gives a little, we all gain a lot.

Postscript

If you are serious about protecting your copyrights, you may wish to officially register your work with the United States Copyright office. It isn’t terribly difficult or expensive, and it will give you huge leverage if you ever take a claim to court. For more information, check out Copyright Office Basics on the Copyright Office’s website.

1. Lawrence Lessig (2002) “Innovating Copyright”, Cardozo Arts & Entertainment Law Journal, 20:611-623

Photographers today are faced with the very real possibility that their rights are being violated due to the simplicity that digital media brings to the act of duplication and distribution of their work. Your ability as a photographer to understand and apply the tools and techniques available to protect your copyrights will contribute largely to how easily someone else can wrongly profit from your work and how easily you can seek remedies for that infringement.

This is a long article. I get into some detail about copyright law, the implications of at least two types of self-attribution you can use to assert your copyrights, the technical aspects of metadata and some of its history, and more. But because I am considerate and I want the impatient and lazy among you to be equally satisfied to have dropped by (thank you, by the way), here are the major points:

• The Orphan Works Act of 2006 does not threaten to dilute your rights as a copyright holder. Which is to say, it wouldn’t even if it actually passed, which it hasn’t.
• There are two major forms of metadata, one older one and one newer one, and you should learn how to use them properly.
• Watermarks are so ugly.

Now, if you feel up to it, dive in.

An article ran in this month’s issue of Shutterbug magazine called “How to Protect Your Images: Photos on the Web Might Be Fair Game.” The article was written by Jon Canfield and centered around one specific concern raised by a little piece of legislation called H.R. 5439 or, in plain English, the “Orphan Works Act of 2006,” which has not yet been passed.

Setting aside for a moment the somewhat alarmist phrasing of the article’s title, which seems to imply that the government could declare open season on copyrighted works on the Internet, and ignoring the calculated impression a reader might get from the first two paragraphs that the Orphan Works Act will do just that, Canfield offers several good tips.

Orphan Works Act of 2006

Before delving full-throttle into the nitty gritty of copyright law and what you can do to protect yourself, I must first dispell concerns about the Orphan Works Act of 2006. If you want to read it, there it is, in all of its PDF glory. So what is an “orphan work,” anyway? An orphan work is one whose copyright holder and rightful owner cannot be reasonably discovered. The Act attempts to fill the void in current copyright law where orphan works live. Canfield says:

Boiled down to plain English, this act says that if a reasonable effort is made to find the owner of an image, and that search is unsuccessful, the work can be used at no charge and without credit to the original creator.

There is mounting concern—legitimate concern—among the agencies of various governments equivalent to our Copyright Office regarding the fate of these creative works whose owners may not be outwardly apparent or may have disappeared and left no next of kin, etc., etc. It’s all very legal and complicated, but suffice it to say, if you want to use a painting that you found somewhere and nobody could identify its creator, so you searched up and down for them but found nothing, you might use that painting only to have the creator suddenly reveal him or herself and sue you. And they could win.

The Orphan Works Act of 2006 seeks to “limit remedies” sought by the creator of a work when their ownership status could not “reasonably” be discovered. That doesn’t mean, by any stretch of the imagination, that people could start using your photographs and somehow slip through a loophole in copyright law that would absolve them of guilt. First and foremost, the Orphan Works Act of 2006 hasn’t even been passed, so none of its provisions have any legal weight whatsoever. Second, even if it had been passed, it doesn’t give additional rights to copyright infringers. In point of fact, it places the burden of proof on the infringer to document their search for the proper owner of the copyright in question and to further prove that they performed the search with “reasonable diligence,” making use of “reasonably available expert assistance” and “reasonably available technology.”

Furthermore, the Act also holds that if the infringer had discovered, to any degree, the identity of the owner of the work, that they must have provided attribution “in a manner reasonable under the circumstances.” In other words, if someone meant to use one of your photographs but couldn’t figure out exactly who you were, they would, under the Orphan Works Act, be required to give you credit to the extent they were able. If they only knew your first name, for instance, they would have to use it in an attribution or fail to meet the criteria of the Act’s provisions.

What that means to you as a photographer is that you should be certain of anyone’s ability to locate you as the creator and owner of your work with a reasonable level of diligence. It doesn’t necessarily mean you have to plaster your name and website URL across the middle of your images (although it could help; I’ll get into that later), but it does mean you have to make yourself available to be contacted and to do what you think is reasonably expected of you to claim ownership of your work. So what does that mean?

Let us assume that the Orphan Works Act will be signed into law. I hope that I have allayed any fears that this Act could dissolve your rights as creators outright, but as they say, you can never be too careful. The Act clearly describes the level of diligence that is expected of an infringer in their search for the owner of a work, and one of the specific tools mentioned is “reasonably available technology,” which is what I assume Canfield latched onto when he dove into the topic of metadata.

Using Metadata

Metadata refers to one of two major types of non-image data that can be embedded into certain image files. The first type is IPTC, which stands for International Press Telecommunications Council. At least as far back as the early ’90s it has been possible to use Photoshop or a similar tool to embed non-image data into the “header” of a Photoshop, JPEG, or TIFF image using the method IPTC came up with. Eventually, though, Adobe came along and decided there needed to be more data. Around 2001, Adobe launched XMP, or Extensible Metadata Platform, which they hoped would provide even more useful metadata space within popular image formats. XMP also defines “synchronization” methods to move certain data fields back and forth between itself and IPTC; Photoshop naturally supports this.

Right now we’re in a transitional period between IPTC and XMP formats. Adobe envisions XMP basically absorbing IPTC, and although that has already begun to happen with the strength of Photoshop and Lightroom as the premiere metadata management tools in use, it’s probably a good idea to fill in every field you can regardless of which standard it’s defined in. In most applications that support metadata tagging, there is now a section called “IPTC Core” and then another for XMP. It won’t hurt you to pay attention to both.

I should note that Aperture also supports XMP metadata, but I am a Lightroom user so I won’t be able to talk about Aperture’s interface or specific support. If you use Aperture and have anything to share about metadata, please leave a comment.

Watermarks

The most popular way to assert copyright on an image is to emblazon it with your name and/or URL and/or a phrase such as “All Rights Reserved.” Personally, I find most “watermarks” to be distracting, distasteful, and poorly executed. To me, a watermark screams opportunism, perhaps a small drop of greed, and utter distrust. The level of greed and distrust that I perceive is directly proportional to the size and audacity of the watermark. Watermarks with outer glows, very thick lettering, or worst of all colors drive me up the wall. Musn’t there be a way to indicate ownership without stabbing your viewers in the eye with Photoshop filters and text set in Papyrus?

To me, the watermark has two distinct purposes:

• To deter would-be thieves from snatching up your image and using it for their own nefarious purposes.
• To increase awareness of (read: advertise) you and/or your website to the people who would be most interested in it: people who look at photographs.

Having a watermark probably doesn’t deter the small-time offender, but I don’t think it’s important. Someone who wants to spend the time to Photoshop out the watermark and make a very poor inkjet print of your photo because they wanted to hang it above their toilet is not the person who was going to bring you fame or fortune in the first place. Photographs prepared at web-viewable resolutions are virtually worthless outside of the Internet, anyway; prints from images of that size are not going to look very good, so the risk of being defrauded is marginal.

The copyright symbol itself and the “All Rights Reserved” phrase are so ubiquitous these days that most folks don’t even think twice before copying things and using them in all sorts of bizarre personal efforts. I say go for it; I’m a big supporter of derivative work and if you want to wallpaper your house with web resolution copies of my photographs, well, frankly I’d be honored.

The bottom line is that watermarks aren’t tremendously effective deterrents. The only way a watermark is going to truly deter a would-be offender is if it covers the image in some distracting way. Doesn’t that defeat the purpose of showing off your work in the first place? It may also be said that a visible watermark strengthens your legal copyright claim. It may make such a claim more convenient certainly, but in the eyes of the law, metadata is just as strong. Even stronger would be possessing the full-resolution version of the photograph. You have that at least, right?

As you can see on this blog and in my gallery, I chose to apply a very modest watermark to my work. My intent was to make it very easy for a casual onlooker who discovers a photo of mine outside of this site to be able to identify me, but also to disturb the original image and its impact as little as possible. Coupled with metadata, I feel that this solves the problem of asserting my legal rights to my work as well as giving me a bit of casual advertising.

I am always ready and willing to answer questions and discuss particular topics in greater detail. If you want to share your own experiences with copyright, watermarking, or metadata, please leave a comment. You are not required to sign up or log in to comment, but I encourage you to do so.