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.

Takeaways

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

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