What I Learned on my Way to the Commons

[by Richard Kelly]

It is my perspective that the role of copyright is to promote publication. Copyright is the engine that allows professionals to grant permission and collect money for the use of their work, that permission is a license. I see no reason for this to change. The fundamental change is how our images are published and what publishing really means in a world wide searchable channel like the Internet.

As commercial photographers our client relationships are primarily creating photographs on assignment or licensing existing images as stock to satisfy a need to sell an idea or to tell a story. Many of us routinely work for the same handful of clients for years. In this regard much of our business practice will not change. But with a new world of image buyers at their browsers, how do we engage them?

As professional photographers in the 21st century we need these things, universal image search with a licensing component, simple and easy to understand industry usage licenses with representative icons and a searchable images and license registry.

These are all possible now.

One model that is worth looking at very closely is Creative Commons. Built on top of Copyright law, this non-profit has built a series of iconic easy to read licenses that explain to the user what permissions they have when using a particular photograph. The image may be embedded with the license and with attribution which is a primary part of all the CC licenses. The simple language icon is built on top of a legal license that a lawyer could only love but one that is translatable in most languages around the globe. I wonder how many of my licenses are universally readable? Many photographers mistakenly assume that Creative Commons is just free pictures, which is just part of the story but not the only story, I suggest reading this.

If the standard copyright is ALL RIGHTS RESERVED, think of Creative Commons as SOME RIGHTS RESERVED.

For most professionals the CC licenses may not be part of your business plan, but some photographers have built their businesses around a hybrid model. This is something each photographer has to establish on their own, but what is interesting is the CC+ option, this model built around the Creative Commons Non-Commercial licenses, but with a component to license commercial rights. Yes, to make M-O-N-E-Y. Read about it here.

By the way, for you first timers, if users of Creative Commons Licenses fail to follow the license, they are infringing the copyright like any other infringer and all courses of legal remedies are available. Registration Counts and your photographs should be registered with the Copyright Office to protect your investment.

Creative Commons licenses are not for all photographers, but we can learn a number of important lessons,

•    Make licensing iconic and simple to understand in all languages.

•    Make attribution a basic requirement of all licenses.

•    Make it searchable and embeddable.

Richard Kelly is a photographer and educator living in Pittsburgh. As President of ASMP,  he is a progressive advocate for copyright and professionalism. Learn more about Richard here.

Creative Commons Licenses are Unnecessary and Dangerous

[by Leslie Burns]

I hear lots of people say how CC makes “sharing” possible and promotes the “democratization” of creative culture. Really, it is the emperor’s new clothes of IP licensing–false, dangerous, and unneeded.

For centuries (there is specific references to licensing in docs dating as far back as 1474!), traditional licensing has permitted creators and users to work together to develop new innovations, new art, new technologies. As the text book we used in my Licensing class in law school puts it (Licensing Intellectual Property: Law and Application pp. 3-4, emphasis added):
[...] it enables creators of information, technology, and intellectual property to do the sharing and collaboration that lead to the creation of new information products, from the production of an epic motion picture to the development of complex software. In other words, licensing underlies technological and creative innovation. [...] licensing enables parties of all sizes and from all sectors to bring information products to market in a multitude of ways. In other words, licensing also underlies business model innovation.”

Think about all the innovations of the 20th century alone, these were all done under the traditional system of licensing. No creativity or innovation was suppressed. The internet was created and grew, very successfully, under traditional licensing!

Moreover, the ability to share (free) has always been inherent in the traditional licensing system. If someone took IP from a creator and the creator didn’t have a problem with it, the creator simply did not pursue the user. An implied license could be said to exist. No problem.

So, I urge all creative professionals not to get sucked into the rhetoric of “remixing” and “democratization of culture” etc. that is promulgated by CC. Did you know that if you license a work using CC, you can never revoke that license later? And that each user under that license can sublicense your work (same terms)? It’s like a virus-license! You lose all control, forever.

You have all the tools you need under the traditional licensing system. You can give and share on your own terms, but you can protect and monetize efficiently as well. The language of the CC is seductive and sounds ever so good, especially to the creative mind that loves collaboration and working with others, but its a siren’s call to your professional doom.

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Leslie Burns is a creative/marketing consultant and not a lawyer (yet). She is taking the summer off from law school to work on a 2nd ed. of her photo biz book. Follow her at burnsautoparts.com/blog, facebook.com/burnsautoparts, and twitter.com/LeslieBAP.

Creative Commons, Friend or Foe?

[by Jim Cavanaugh]

Ask most photographers about Creative Commons and they will likely respond that it is just a tool for people to use images without having to pay for them. At first glance this may seem true. Creative Commons allows people to use photographs and other intellectual property created by others in several broad categories of use. These are broad licenses where creators receive no compensation. This is the part that most photographers see as a devaluation of copyright or “giving images away for free”.

But is it? Creative Commons does offer licenses. They may not be the kind of licenses we want to grant for our work, but they are licenses none the less. What do they do? The facilitate licensing. They provide a mechanism for a copyright owner and an end user to negotiate specific uses and operate with respect for current copyright laws. In essence, the end user obtains a proper license that the copyright owner grants for the use of their work. As long as the user abides by the limitations granted in the Creative Commons license, they may use the image without fear of infringing the copyright owner’s copyrights.

While the current range of licenses available through Creative Commons does not address the licensing needs of most transactions between professional photographers and their clients, it does offer a model to build on. The strength of the model is that it is fast, easy, available and widely recognized. The traditional process of obtaining licenses from photographers tends to be slow, complicated and without standards. However,  the PLUS Coalition has done tremendous work in trying to bring standardization to this process.

Technology has changed the expectations of how users expect to obtain content. Creative Commons may not meet our commercial needs and is geared to specific markets. However it is an important first step in solving the issues on how users of content can easily and quickly obtain legal rights to utilize that content.

Can Creative Commons model be a guide for us to build or utilize new infrastructure to license our work?

This License is Non Transferable

[by Steve Whittaker]

Once in a while I will meet a marketing person who demands the right to allow property owners, contractors and other entities unrestricted use of our images without additional fees. Some have expressed their right to resell photographer’s images to recover their firm’s cost from an assignment or worse, make a profit from our intellectual property, the images we create.

They may have been influenced in the past by photographers who allow unlimited and unrestricted usage to any third party firms such as contractors, vendors or manufacturers who want them as part of a package and this is a dangerous trend.

There are some photographers who have been shooting for years and didn’t care about the long-term issues or the loss of potential revenue, not to mention the potential damage they are causing to our industry. These photographers are giving away potential income but worse, they have created a culture or a norm by allowing their clients to walk all over them.

If you have not already done so, it would be in your best interest to add the NON TRANSFERABLE clause to third party requestors into your contracts. That offers further protection to your intellectual property.  It also will give you a stronger potential for future income. You will need to monitor and enforce that issue but clients will pay attention and you have the potential for making a better profit from your work.

Invest some time exploring the www.asmp.org web site. Start with the link to commerce and publications on business practices. Browsing through the legal resources section can empower you to move your career forward with a better understanding of how to create stronger terms and conditions, licensing, copyright registration and beyond.

Your estimate, contract and your terms and conditions need to be firm and well defined. Illustrate what the client is receiving. You also need to illustrate the limits of their license, the terms or period of use again. The information that you can down load from that site will surprise you and is well worth the time invested.

The key to making a better living in our profession is controlling the licensing of our images and protecting our future as ASMP photographers.” Empower yourself.

ASMP Copyright Symposium Videos

On April 21, 2010, the American Society of Media Photographers presented an important symposium in New York City addressing the sweeping changes in the way images are used and distributed. The symposium, Copyright and the New Economy: Issues & Trends Facing Visual Artists, was a big hit with the packed TimesCenter audience. According to ASMP President Richard Kelly, “During the coming year, ASMP plans to lead in moving forward on copyright issues and identifying sustainable business solutions for our changing world.”

Videos of individual presentations and the panel discussion are available here.

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