A Few Thoughts on Photo Licensing and Creative Commons

August 11, 2010 at 11:26 am (Linux, Photography) (, , )

You may or may not have noticed that I license my photographs fairly permissively. For all but shots of humans for whom I have no model release I use the Creative Commons Attribution-ShareAlike license, and I would like like to talk about my experiences with that for a bit today. Now, before I was into photography, I was hardcore into computers, and to an extent I still am. Years ago I discovered open source software such as the Linux operating system, Firefox (then Mozilla) web browser, and many others. I discovered a community of computer geeks who were disenchanted with the typical commercial offerings and decided to write their own software that performed the way they wanted it to, and rather than locking it down, they released it to the world so anybody else with the time and ability could enhance it and make it better, and once again continue the chain by sharing their enhancements.

It rather reminded me of kindergarten, where we were taught that if you had two apples you should share one. If you had a bag of candy, you should let each member of the class have a taste. We were taught that this was the proper thing to do. So why have people strayed so far from these basic principles of sharing your assets if you have an abundance of them? Why is it now considered more correct to hoard your abundance and charge as much money as you can for it?

Ah, perhaps that’s a question for another day, I’m straying rather far from my point now anyway…

Back to Creative Commons. The crux of the license focuses on two points, the first is that the author of the work must be attributed. This stands to reason, everyone deserves credit for their work whether they sell it or give it away free. The second is the so-called ‘share alike’, that is, if you take an existing work and change, enhance, remix, or just plain make it better, you must release your enhancements under the same or a similar license. For a person like me, this just makes good sense. It fosters a community of support, mutual benefit, and produces a pool of work available for anyone to enjoy and use no matter what their personal means may be. It just feels right to me.

Now, a lot of photographers seem to hoard their work like coal barons, clutching it to their chests and allowing people but a brief look at it. They only allow you to view a very small resolution version, often so small you can’t even tell if the work is good or not. They put watermarks on it which detract from the quality and impact of the work. They use digital hacks such as disabling right-clicks so no one can download the work. I posit that these artificial barriers do little more than lower the value of your work, and keep honest people (and potential customers) from evaluating it properly. It is, as the saying goes, defective by design. Crippled on purpose. Why would you want to cripple your work?

Here’s a sad fact of life: If it is on the internet, someone will download it. It doesn’t matter what you do to safeguard your work. If someone wants to steal it, they will. That’s why we have proper legal procedures to redress such situations. Not always the quickest, not always the easiest, but they are there.

Now, the main argument I see against using a Creative Commons license is this: “If I give away my work how will I make any money?” Let’s think about that. Speaking from personal experience, there are generally two distinct groups that may want to use your work. The first is bloggers, and I am also going to lump in regular folks who may want to use your stuff for personal use, such as wallpaper for their computer. Now here’s the thing: If you think you are missing a sale by allowing these folks to use your stuff you are delusional. A blogger is not going to shell out $$$ to use your picture of the Chrysler Building to illustrate their blog post on New York City urban issues. Sorry, they’re not. They will scour flickr and other sites and find a public domain or creative commons picture to use instead. So what have you gained by barring them from your work. Nothing. What have you lost? Exposure. Some of these blogs and other sites draw a lot of eyeballs. How much is it worth to you to have a few hundred, or even thousand new people exposed to your work? There are even a few crazy folks who pay good money to get their stuff on popular blogs, it’s called advertising. Why not advertise your work for free?

Now our second group of people who may want to use your work are commercial interests. They want to use your images for an ad campaign, packaging, to illustrate their websites and promotional materials and whatnot. Again, think of the attribution clause. Do you really think a commercial interest is willing to put a conspicuous “Photo by Joe Blow” on their materials? Of course not. These people will pay to license your work so they do not have to conform to the attribution clause. Case in point: I was contacted by a web developer who wanted to use a picture I took of the Alberta flag for their clients website. At first the guy asked if he could attribute in the source code. I of course said no, that is not sufficient. Nobody reads the bloody source code looking for photo credits. So: The guy said he’d do a mockup of the site using the image and talk to his client. What do you know? A few days later he got back to me and told me his client loved the mockup. We then discussed licensing terms. Another example, Hasbro Canada contacted me about using one of my images on the gameboard of ‘Canadian Monopoly’. Do you really think Hasbro wanted to put ‘Photo by Darren Kirby’ on the gameboard? Of course they don’t, and I had yet another sale.

So: I hope I have properly conveyed that those who are willing to pay for your work will still do so, and those who are not willing (or are unable) will provide you with valuable exposure.

I have seen some folks who license their stuff Creative Commons, but add the No Commercial clause. Their heart is in the right place, but this is still misguided. A large part of the problem is what exactly is commercial use? Is a blog with advertisements on it commercial use? Is a registered charity’s website commercial use? As far as I know, no court of competent jurisdiction has yet ruled on what exactly is commercial use pertaining to the Creative Commons license. Are you willing to spend the time and money to become the test case? Besides, I think I explained well enough above that commercial interests will pay for your work anyway, as they do not want to uphold the attribution clause cluttering their product or service.

I challenge all who read this to give Creative Commons licensing a try. You may be surprised just how good it makes you feel to share. You may be surprised what a weight off your back it is to no longer need to be vigilant and paranoid about people ‘stealing’ your work. Most of all, you may be surprised how much more exposure your work gets, and how many sales you still manage to close…



  1. DaveOnFlickr said,

    Great read, I’ve used the batch tool to change all of my images.

    • Darren said,

      Hey! Cool, thanks Dave. Just want to reiterate though, make sure you don’t license any pics you may have of recognizable humans CC unless you have a model release. You can get in a spot of legal trouble if their face shows up on an advertisement somewhere πŸ˜‰

  2. Jeremy said,

    This mostly rings true for me Darren, although I disagree with your characterization of the non-commercial licenses as being rather useless. I think it’s very similar to the scenarios for the license you’ve chosen — if someone wants to use one of my (cc attr non-comm) photos commercially, and they want to respect the license, it simply opens a conversation.

    Sure, anyone can take it and use it anyway, and I’d probably never win in a fight (or even find out), but I like the statement it makes — it’s a way of saying that I’m happy to have my pictures used by nonprofits, but that if a corporation wants to use it, we’ll have to talk about that first. Perhaps it’s empty symbolism, but it reflects my values better.

    People often ask permission to use my photos, even when it is non-commercial, and when they’re planning to attribute anyway, which I like. The only time (that I’m aware of) when an organization seemed to stretch the non-commercial license without talking to me was the Smithsonian site, which I talked about here.

    • Darren said,

      Ha ha! Hey now, I didn’t say useless, I said misguided…

      I understand the moral and ethical attraction of the no-commercial clause, in fact it’s exactly what I used when I first started posting photos to flickr.It ‘feels right’ as I mentioned above, but I think it is problematic, and if not impossible, extremely costly and difficult to defend. The example you posted there speaks to my point. Is that commercial use? Perhaps in your mind, perhaps not. What it comes down to is what the courts think, and that may be costly to find out, especially if they don’t agree with you.

      Now certainly, you must do what feels right for you, but I prefer keeping the clause out. My point of view, if someone wants to use my shot have at it, commercial or not. As long as the attribution is present then I am receiving a benefit that costs me nothing, and it gains me nothing by denying them the use. We both know they won’t pay up just because of that clause, they’ll move on to the next picture. I dunno, maybe that makes me a view whore πŸ˜›

      Another reason I don’t use no-commercial is because it makes my work incompatible with wikipedia, which is a project I admire very much, and choose to make my photography available to.

      There are a few other criticisms of the no-commercial clause as well, which are not as valid/meaningful to me personally. There is a fairly good treatise on some of the issues here:

      • Jeremy said,

        Yeah, I think I get it, and I’m grateful to learn more about this stuff, particularly the share-a-like, which I had initially ignored. I think my feelings on the NC clause are clouded by an irrational and visceral aversion to corporate power and greed. So as a result, I may shoot myself in the foot by eliminating potential exposure…but exposure was never my goal anyway. Gonna stew on this one some more — thanks!

  3. Lori said,

    I picked up a copy of Digital PhotoPro, November 2010. One of the articles is titled “Creative Commons In Practice” with the catchy lead “While it can be a powerful tool for getting your work noticed, Creative Commons presents problems for unwary photographers;” Not to say YOU are unwary. It’s not super long. You could probably read it in the grocery store line up but it does explain terms, rights and legal ramifications.

    I copyright all my images solely because I am playing the corporate game with Getty. CC automatically excludes any image invited by Getty from being Rights Managed which is where, typically the “big sales” lie. I’m still waiting for that!!! But, I am on the dance floor.

    Just to keep my life simple I don’t give anything away. Everyone wants something for nothing. Photography is not an inexpensive hobby. It takes time and effort. By stating a price, even a token $5 for a web size image, value is placed on photography. Free images undermine the work of all photographers. It may be the way of the future but I do not like the feel of that balance, something for nothing.

    Oh ya, the attribution thing. In any discussions I have seen, those with much more experience than I, flat out state that they have never had a sale that came from someone seeking out their images based on published attributions.

    hmmm…. I did not think I had much of an opinion on this. Ha!!! Of course I am open to changing my opinion even though that might require more thinking.


    • Darren said,

      Thanks for the comment Lori…I’ll have a look for the article, but I doubt it will change my mind. Clearly this is a choice that depends largely on personal value and personal choice. I am on the complete opposite side of the fence as you…see, I exclude myself from Getty and their ilk because they want sole control of my pictures, and demand exclusivity when it comes to selling my pictures. That doesn’t sit well with me…I want to be in control of who purchases my images…and even what they are used for to an extent.

      Lots of things take time and effort. That doesn’t mean they can’t be done for love rather than money. The original example I used here is software. While in college Linus Torvalds wrote an entire computer operating system and gave it away for free. It is now the third most popular operating system in existence, and Linus now has a cushy $300K per year silicone valley job and also rakes in the cash doing speaking engagements and seminars. I’m not trying to convince you to give your stuff away for free Lori, I’m just trying to explain why some people _do_ want to do that…

      As for: “those with much more experience than I, flat out state that they have never had a sale that came from someone seeking out their images based on published attributions” That’s fine…I’m sure they haven’t. Neither have I. What I do know is that many more eyeballs have seen my shots and read my name than if I hadn’t licensed my photos CC. And yeah, I’m certainly not making fistfuls of dollars with my photography, but all the shots I have sold…were licensed CC.

      Cheers πŸ™‚

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