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

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.

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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

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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.