Flickr and Creative Commons
by Ruth Suehle
This week a friend posted on her blog that she was marking all of her Flickr images “all rights reserved” (instead of with a Creative Commons license) and “friends and family only” (instead of publicly viewable) because of this story. A person uploaded photos of his daughter to Flickr. One was used without permission by Nerve Media’s Babble.com on an article about children and lead poisoning. The photo had been marked “all rights reserved,” and Nerve/Babble blamed the error on an ill-informed intern. The community responded that the company had been guilty of the same offense repeatedly in the past. Babble responded on their site that there wasn’t an alleged “long history” at all. He said/she said.
Babble isn’t the first to be accused of not respecting artists’ rights on Flickr. The list includes Microsoft and Ticketmaster. This week it’s Virgin Mobile, in a lawsuit that may be a test for Creative Commons licensing. But the cases aren’t all the same. There are two very different issues: actual violations and perceived violations.
Hey, that’s mine!
Let’s start with actual violations. Not only that, let’s start with somebody who was blatant and unapologetic about it: Ben Popken at The Consumerist, an “anti-stupid-capitalist” blog. It’s published by Gawker Media, which is also responsible for popular sites like Lifehacker, Defamer, and Gizmodo–in other words, you’d think they’d know better.
You’ll notice that the first thing under the headline on this post is the phrase, “Image redacted.” You’ll find that on a lot of Consumerist posts these days. After being called out for using a Flickr picture without credit on that post, Popken said that he had gone back and added a link to the Flickr user and would do so in the future. Only half an hour later, he changed his mind:
I have now removed the link because we realize that this policy would be more trouble than it’s worth. If people want credit, they can ask for it. If people want their photo down, they can ask us. Otherwise, we’ll just go back to using the best photos we can find in order to illustrate our posts. If you guys want a bunch of ugly ass retarded stock photos all the time, you’re in the [expletive deleted] wrong place.
Because, of course, everyone who uploads photos to the Internet reads The Consumerist religiously and will know when their photos have been used inappropriately. He later explained further that it’s just not “worth the trouble” of crediting people:
Credit is more trouble than its worth because then we would have to deal with people bitching all day that we didn’t spell their name correctly, or they want their name and not their Flickr ID and so on and so forth… when my time is better spent looking for the next post to write. The next post that will save you time or money, or reveal some corporate skulduggery or whatnot. What is the greater good? To use the best photo possible to illustrate the post and move on!
Several other users pointed out that this is exactly the sort of thing The Consumerist posts about–companies taking advantage of people. This wasn’t a case of misunderstanding the meaning of Creative Commons. The picture in question was marked “all rights reserved,” but other uncredited photos had been uploaded to Flickr with Creative Commons licenses. Popken and The Consumerist actively disrespected artists’ rights.
Two months later, Popken recanted. Five months after that, he posted about a stolen photo that was used for porn. Better late than never.
But you said I could use it!
Perceived and accidental violations happen when there’s a gap between what is actually required by the Creative Commons license an artist chose and what the artist believes is required. Just the phrase “Creative Commons” alone doesn’t tell you what uses the artist has given permission for. Artists can specify use in four ways: attribution, noncommercial, no derivatives, and share alike.
Often the perceived violation is the fault of the person who chose to use a CC license without understanding what it meant. There are posts on message boards across the web from users who found their CC-licensed images used in the way their specified licenses required, but their complaint is, “They didn’t ask me!” As explained on the CcSearch page, “If you respect the rights they have reserved…then you can use the work without having to contact them and ask.” Creative Commons is meant to simplify copyright.
If someone uses your CC-licensed photo within the parameters you specified (Attribute-ShareAlike, for example—they gave you credit and released their work under the same license), they’ve done their part. Your responsibility is to make sure you understand the license you’re assigning before that happens.
The excuse of the photographer in the Virgin Mobile case is a perceived violation: he didn’t fully understand the Creative Commons license when he chose it. He is charging Creative Commons with negligence in failing to properly inform him about the meaning of a commercial use license and the ramifications of entering into such an agreement. You can read Creative Commons’ point of view on the situation.
On the flip side, there are artists who know what they’re selecting, but users who don’t understand the license. That is Babble’s defense: their intern thought Flickr meant free and that she didn’t need to worry about it. Many photos on Flickr do carry Creative Commons terms, but not all. Also, users select the specific type of CC license per photo, so if you’re going to use pictures from Flickr, you must check the license every time and understand what each version requires.
So what’s a shutterbug supposed to do?
I already mentioned a friend who has chosen to restrict access to her photos on Flickr and to remove the CC licenses. I don’t think that’s the solution. That’s like saying that the answer to mp3 piracy is for musicians to stop making music, or to send new tracks only to their friends.
We’ve posted a few things on Red Hat Magazine lately about communities. The Internet has proven over and over that communities work. Even loosely-organized, open communities with little hierarchy work well, sometimes much better than the micromanaged, tightly closed ones. But they only work when the members are involved. We must actively participate in our communities for them to thrive.
Thomas Hawk, who has blogged extensively about the variety of problems photographers encounter, posted earlier this year about an infraction by Forbes and what he thinks about the situation pro-am photographers are in thanks to web sharing. Hawk doesn’t post on Flickr anymore. He has moved to Zooomr, a site for which he is now the CEO and “chief evangelist.” It’s not Flickr, and it’s not stock photography. His goal for Zooomr is to create “an interesting hybrid that allows a broader way for photographers to share their work while receiving compensation for it at the same time when appropriate.”
Is Zoomr going to be the magical fix? Maybe. Maybe not. But if it’s not, the photo community will find the next answer. That’s the strength of all web communities, whether it’s Flickr, or the communities around Creative Commons and open source. They find answers, and when today’s answer doesn’t work, they have a new one tomorrow.
September 29th, 2007 at 11:49 am
hi, I’m, the dad whose reaction to seeing his daughter’s picture used without permission started the whole brouhaha about babble.
this is a very thoughtful, respectful piece. thank you. you’ve really given your readers a lot to think about.
I can’t resist, however, correcting one notion. you suggest the babble flap has devolved into a he said/she said. that’s simply not the case. we have documented at least four other instances of babble’s improper use of a flickr user’s photographs, the resulting confrontation, and the same excuses came from babble each time. we have further evidence of at least a dozen other flickr photographs that were used without the owner’s knowledge or permission. we have documented some of that evidence here:
http://babblesteals.blogspot.com
although I am just so sick of all this mess I haven’t gotten around to put everything people have e-mailed me up there.
just because a CEO puts spin on a very bad PR situation does not make it a simple he said/she said situation. there is evidence here.
October 1st, 2007 at 8:59 am
Dutch -
I have a young child whose pictures I post on Flickr, and I’ve worked in PR. So I certainly understand both sides here, but I don’t presume to be judge and jury. I have no doubt that Babble’s PR people are doing their best to minimize how this looks. I also have no doubt that up against them are angry parents, which are probably the most defensive sort of people there are. One side says A; the other side says B–objectively, that is a he said/she said.
I don’t know what your plans are to pursue this further, but I’ll be interested to see the conclusion of the story, if there is one.
October 1st, 2007 at 4:38 pm
Ruth, so by your logic, let’s say you say your son’s name is “Bob.” I say his name is “Chuck.” Objectively, that is a he said/ she said. Right? So is my side worth listening to, even if you have his birth certificate?
I’m not trying to be a jerk. Every trial I’ve ever seen has technically been a “he said/ she said,” but 12 objective jurors have always found the subjectivity to hold one of those sides responsible or guilty.
I have at least 3 ex Nerve Media employees who have told me that using the internet as a source for free stock photography—because they weren’t given any budget for photographs—was MANDATED from the very top. I have e-mails showing that this practice was also used by Babble, that they were aware it was wrong, and that whenever caught they told the same lies and made the same excuses.
Rufus Griscom might want to call the kid Chuck, but that doesn’t mean it’s his name.
October 1st, 2007 at 9:45 pm
I didn’t say you didn’t have evidence. I didn’t even say you didn’t have good evidence. I said I wasn’t taking sides.
I’m calling him John Doe.
October 2nd, 2007 at 1:38 pm
This is a subject I used to debate on the Flickr forums a good bit — namely, that the Creative Commons should not be penalized by some folks who abuse the Creative Commons — as these same folks will most likely fail to observe the nature of an All Rights Reserved entry as well.
Another Frequent problem in the Flickrverse is folks believe that the Creative Commons is giving up their copyright on the photo — quite the contrary. The Creative Commons is really a miracle because it is made possible because of Copyright, and as we know from the Open Source world, Copyright is what allows us to choose our licensing modes.
I think only that by repeatedly pounding the message in will the media finally learn to respect that while digital media isn’t free for the taking, they can easily come to a happy consensus and take advantage of what content is there under some rather permissive terms.
Finally, one should be careful when quoting “Thomas Hawk” (pseudonym) as a defender of public rights and a bringer of goodness. He created a very rough and blatant knockoff of Flickr.com, which lacks originality and draws an audience largely from his complaining about Flickr.com’s own service on their public forums in the most ostentatious and one-sided way possible. It’s a very sad way to both create and market a company. If anyone has been reading Flickr Central or the official forums for a year or so, they’ll likely be aquainted by his antics.
Zoomr’s alleged bend towards commercialism (which has not yet been realized) is likely that of a profit center — exploiting a lucrative market — and not the way to encourage sharing in truly open communities. This is the case with many stock photography sites that pay only minor royalties to photographers while bringing in large amounts of money.
I would like to see the Creative Commons succeed in the same way that the GPL has — allowing free exchange of information, when desired. Muddying the waters with profit motive does not help the situation.
October 2nd, 2007 at 1:48 pm
Michael -
That’s interesting to hear about Zooomr. (Yikes–I imagine the first thing they’ll have to overcome is getting people to put that third “o” in there!) I’m not very active in Flickr’s forums, so I really only know him from his (rather amusing) encounters with various San Francisco security departments. I don’t really know of anybody using Zoomr, so I hope it didn’t sound like an enthusiastic endorsement, although I think the idea as he poses it of a hybrid Flickr/stock site is interesting. Philosophically it doesn’t sound like a Flickr ripoff, but I think we all know there can be a wide chasm between philosophy and reality.
October 2nd, 2007 at 2:15 pm
I don’t read those forums myself anymore, but they were interesting at times. That aside shouldn’t detract from the point of this article though — to stop producing open content because of a few people who don’t grok open content licensing (or copyright in general) would be highly unfortunate.
The revolution can only occur if those interested in creating and sharing open content keep doing it… and already (mainly in music circles) we are seeing those walls break down. I know I’ve gotten a bit more exposure through a few CC related activities, and even if it means helping out a non-profit with some publication, it’s nice to be able to do so.
Bottom line — the Creative Commons still rocks. Flickr deserves a thumbs up for jumping on the CC bandwagon fairly early on, well before some very similar clones even existed.
October 3rd, 2007 at 9:08 am
Ruth – thanks for a very helpful and refreshingly rational piece. I found it so much more helpful than SweetJuniper’s ranting and badgering. (Everyone by now knows he has a grudge against Nerve Media and its CEO because they didn’t hire him to be a blogger there, or fired him, or whatever. So over it. Grind your axe somewhere else and let the rational people take over the discussion)
The great thing about this argument is that it represents a turning point in the future of content sharing, and the tragedy of the commons. My opinion is that Creative Commons is fantastic, and if you choose to offer up your material, be aware that it might show up elsewhere on the web. Hopefully Flickr and similar sites will make it more clear to users how to prevent unwanted use of photos. But until then, put the photos up that you want to share, keep the others at home.
Thanks again for the thoughtful piece…
A
October 3rd, 2007 at 2:39 pm
Ariel, this is the first I’ve heard of any such grudge. Please elaborate!