United States: Creative Commons Works: Free To License, But Not Necessarily Free To Use

Companies love to use third-party content for free. In this era of belt-tightening and slashed marketing budgets, why pay to create photos and videos for advertising and other commercial uses when compelling photos and videos are readily available online for licensing for commercial use at no charge?

Perhaps the most important source of such works is Creative Commons, a nonprofit organization that promotes the free sharing and use of copyrighted works. Creative Commons publishes user-friendly copyright licenses that are free to use, and relatively light on legalese; some of these licenses allow for even commercial use of the licensed works at no charge. Since the first Creative Commons licenses were made available in 2002, the organization estimates that hundreds of millions of works have been distributed under the Creative Commons regime, and counts Google, Wikipedia and even the White House as users.

Despite such popularity, there have been surprisingly few court decisions involving a Creative Commons license—Creative Commons identifies only nine such decisions total, and only two in the United States. A recent decision by the D.C. District Court, however, highlights potential pitfalls of the Creative Commons licensing regime for both licensors and licensees when a Creative Commons work is used for commercial purposes.

Creative Commons Licensing

Each of the Creative Commons license variations permits use of a copyrighted work without paying a licensing or royalty fee, provided that the licensee complies with certain conditions. The chart below summarizes the primary distinctions among the six license variations:

*  Licensee must attribute the work to its author.
**  Licensee may modify the work and create new works using the work.
***  Licensee must distribute derivative works under the same license terms as the original work.

Note that three of the six licenses permit commercial use of the work being licensed.

The Art Drauglis Decision

The case at hand, Art Drauglis v. Kappa Map Group, LLC, involved the commercial use of a photo on the cover of an atlas under the Attribution-ShareAlike license. While the photographer apparently did not intend his photo to be incorporated into a for-profit work, the D.C. District Court found that the disputed use fell squarely within the terms of the license.

The photographer, Art Drauglis, posted a landscape photograph entitled "Swain's Lock" to his public page on the photo-sharing website Flickr. Flickr offers its users the option to make their photos available for use by third parties in one of two ways: (1) By dedicating the work to the public domain (thereby waiving copyright protection), or (2) by licensing the work under a Creative Commons license (and retaining copyright in the work). Rather than selecting one of the more restrictive Creative Commons licenses, Drauglis chose the Attribution-ShareAlike 2.0 license, which allows anyone to "copy and redistribute the [licensed work] in any medium or format" and to "remix, transform, and build upon the [licensed work] for any purpose, even commercially."  (Emphasis added.)

Kappa Map Group, which publishes a variety of maps and atlases, selected Swain's Lock for the cover of its 2012 "Montgomery Co., Maryland Street Atlas," which it sells for about $20. Kappa included an attribution notice on the back cover of the atlas identifying Drauglis as the photographer, as follows:

Photo: Swain's Lock, Montgomery Co., MD

Photographer: Carly Lesser & Art Drauglis, Creative Commoms [sic], CC-BY-SA-2.0

 When Drauglis discovered that his photo was being used on the atlas's cover, he filed suit against Kappa, claiming that Kappa was in breach of various conditions on which the license grant was predicated and therefore was infringing his copyright.

Specifically, Drauglis argued that (1) the atlas (or at least the atlas cover) was a derivative work of his photo and, per the license's ShareAlike requirement, Kappa was obligated to distribute the atlas under similar license terms for free; (2) the photo attribution notice displayed on the atlas was insufficient because it did not include either a copy of or a URL link to the license terms; and (3) Kappa failed to comply with the license's attribution requirement because the attribution notice (which was displayed in 7-8 pt. font on the back cover) was not as prominently displayed as the copyright notice for the atlas as a whole (which was displayed in 10 pt. font on the inside cover). The court dispensed of each argument rather summarily.

Regarding Drauglis' first argument, the parties agreed (per the plain language of the license) that only "derivative works"—as distinct from "collective works"—must be distributed free of charge pursuant to the ShareAlike requirement. Indeed, the Attribution-ShareAlike license makes clear that "collective works" and "derivative works" are mutually exclusive categories – terms applying only to derivative works do not apply to collective works, and vice versa. A "collective work" is defined in the license as "a work, such as a periodical issue, anthology or encyclopedia, in which the [licensed work] in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves, are assembled into a collective whole." Because Kappa incorporated the photo into the atlas cover "with no major deletions or alterations" and the atlas itself was a compilation of individual maps together forming a "collective whole," the court found that the atlas was a "collective work," and therefore the ShareAlike requirement did not apply.

Regarding Drauglis' second argument, the license requires that the attribution notice include "a copy of, or the Uniform Resource Identified for" the Attribution-ShareAlike license, together with information identifying the licensed work and its author(s).  (Emphasis added.) Although the attribution notice used by Kappa did not include a URL link to the license terms, the court found that it did sufficiently identify them. "CC-BY-SA-2.0" is, in fact, the shorthand identifier used by Creative Commons to refer to version 2.0 of the Attribution-ShareAlike license, and the first result in a search for "CC-BY-SA-2.0" in Yahoo!, Google or Bing links directly to the license's summary page on the Creative Commons website.

Regarding Drauglis' final argument, the Attribution-ShareAlike license requires that the attribution notice be displayed as prominently as "comparable authorship credit" appearing in a collective or derivative work. The court found that the appropriate point of comparison in this case was not the atlas copyright notice, as Drauglis argued, but rather the copyright notice for each individual map within the atlas, to which the photo attribution notice was sufficiently similar in both font size and prominence.


Although Drauglis' arguments were thin, and Kappa's use of the licensed photo was found to be well within the scope of the Attribution-ShareAlike license, the court nonetheless denied Kappa's request for attorneys' fees. Paying a negotiated license fee or investing in the creation of original cover art presumably would have been less costly to Kappa than 14 (long) months of discovery and litigation. Further adding to the cost of what was expected to be a fee-free license, Kappa ultimately replaced Drauglis' photo with a new cover photo (as seen here), presumably in an effort to mitigate potential damages while the trial was ongoing.

Anyone considering commercial use of a Creative Commons work will want to take note of this case and bear in mind the risk of litigation, as commercial uses under a Creative Commons license are seemingly more likely to be challenged by the licensee than non-commercial uses, and had Kappa not carefully complied with each applicable license requirement, the decision might well have gone the other way.

Licensors making their work available under a Creative Commons license should also take care to understand the various uses permitted under each license, rather than assuming that all Creative Commons licenses necessarily prohibit licensees from turning a profit.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.