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June 9, 2005

The cutting edge of licensing rights

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Posted by JD Lasica

Like many Copyfighters, I've come to rely on Creative Commons over the past few years to fine-tune my copyright. Creative Commons is prominently featured in "Darknet," and they're one of our major partners at (The Guardian UK today calls CC and Ourmedia "cousins"; ah, the joys of familial bonds.)

I thought I'd ask Copyfight readers if you have any insights into two licensing areas.

1) Of all the Creative Commons licenses, none enables the creator of a work to allow her work to be used for commercial purposes but to be compensated for it.

There are several ways to go with this. The copyright owner grants an agent to negotiate on his or her behalf with a third party (such as a cable network or portable device manufacturer). The license provides that the creator is paid a fixed percentage of revenues generated.

A colleague and I approached the good folks at CC, who told us this kind of license wasn't in their game plan. So we're thinking of ways of making this happen outside of the CC framework.

Thoughts? Anyone interested in helping us devise a new kind of license that compensates the copyright holder? I could see rolling this out on Ourmedia in a few months, and thousands of people signing on.

2) On a few occasions, people have asked me whether they have the right to take photographs of individuals or children or teens in public places and publish these photos to the Web. The person or persons in the images are identifiable, but the photographer is doing it for creative, not commercial, purposes.

In some cases, they assign a Creative Commons license that allows derivative works to be made. Other times, they donate the image to the public domain.

It's happening today at sites like Flickr (and maybe Ourmedia, I'm not sure about that). If you tell the amateur photographers at Flickr that you need a release form from the subjects before posting the photos, they'll look at you like you're crazy. That's where the culture is moving.

I asked Creative Commons whether a photographer can assign a CC share-alike license to a batch of photographs if the subject in the photo is clearly identifiable, or whether you always need a release form (which no one except professional photogs uses).

Their answer was that it's a complex issue and not an area they generally get involved in.

I just bought a terrific new digital camera and, like millions of other people, now have the ability to snap amazing, beautiful candids of street scenes, public parks and other places where people hang out in public. My friend has a good lens on his digital camera and has snapped some terrific close-ups of kids playing soccer on a public field. Years ago, they might have appeared as a tiny fuzzy image. Now you can see who they are in full gigapixel glory.

In California, there's a right to control the use of your own images. Other states have other statutes, but most probably don't.

So. Any thoughts or guidelines about when it's permissible to donate images of identifiable people to the public domain or under a sharealike license without obtaining a release?

Comments (14) + TrackBacks (0) | Category: Laws and Regulations


1. Crosbie Fitch on June 9, 2005 6:18 PM writes...

1) Are you suggesting a license that effectively says "You are entitled to resell/commercially exploit my art but only if you give me 10% of all monies accruing"?

Headache incarnate baby.

Let's just try a simpler one out for size: "You are entitled to resell/commercially exploit my art, but only if you reimburse me 10 cents per copy".

And this works on Kazaa how?

You're missing the point of CC. It's not about controlling your art, it's about letting go. It's about adding value to your art, by conferring freedoms upon it - not price tags!

Grok failure.

Permalink to Comment

2. JD Lasica on June 9, 2005 6:57 PM writes...

Perhaps, Crosbie, but I suspect millions of people would take a slightly different view, namely:

Here's the movie I spent a couple of days creating. Everyone's free to enjoy it and access it online, for free, no strings attached. But if a company wants to come along and pay me money to put it on their service, their network or their product, hell YES I'll take the money.

Now, we're just entering an era when grassroots creators are producing video and audio and art that commercial entities are interested in. (There's no question about this -- several have approached me.) They really don't have the bandwidth to approach dozens or hundreds of creators to negotiate one on one for the rights to showcase their works. So they want to go to a third party -- say, the Harry Fox of cyberspace -- and say, Here is a check for $20,000 for the right to preload these 50 videos into on our handheld video player. (Kazaa doesn't enter the picture. The video may already be on Kazaa if it's been posted online. The video player manufacturer doesn't care if it is.)

Now, $20,000 is a sum that the real Harry Fox Agency wouldn't be interested in handling, but it's a sum that a one- or two-person online agency /rights facilitator could easily appreciate, and more importantly, it's an unexpected $360 windfall into the pockets of these 50 video creators (i'm assuming the agent who facilitated the deal gets a 10% cut, not 90%).

Are there lots of kinks to be worked out in such an arrangement? You bet! But I suspect it's going to happen -- someone, somewhere will do this in the next year or two.

The reason I tossed it out here is not to work out the parameters of a business plan but to examine some of the interesting issues involved for the creators who want to opt in to such a group license.

Permalink to Comment

3. Crosbie Fitch on June 9, 2005 7:35 PM writes...

I do see where you're coming from.


There is a big friction issue here.

The CC-NonComm is the one that the artist says "Ok, I guess I don't mind you copying it as long as you aren't profiting from doing so".

CC is about facilitating and encouraging the artist to let go of that copy-restriction.

The CC-AttribNoDerivs is the one that the artists further says "OK, what the hell, anyone can copy it as long as I get the credit - but get back to me if you want to modify or incorporate it".

The artist surrenders very little indeed when they say "Hmmn. Ok, I'll settle on a fixed royalty irrespective of how much commercial benefit you obtain from my work"

You've got to get in touch with the artist sooner or later anyway, and how many prospective commercial users are going to say "Oh, apparently there are umpteen artists who have preset royalty rates. Maybe we should check out their work first in case it might save us a few pennies and precious negotiation time?"

Creative Commons really isn't about trying to be reasonable with commercial users, because commercial users have to play by the rules anyway. Standard copyright is still just as good for them as it's ever been.

CC is about being reasonable with non-commercial users - precisely because these are divided into two camps:
a) The bastards who'll share and be damned.
b) An artist's best fans who suffer by respecting copyrights to their cost.

An artist wants to tell the second group "Hey guys, of course I don't mind if you rip my CD so you can play it in your car, or give a copy to your grandson"

Other artists may even say "Hey, make it a film score, put it on a compilation CD, there's no charge cos it's all great publicity if you credit me - however, if you don't, I'll sue the pants off you!"

I'm not saying the idea of a pre-packaged royalty agreement/license is invalid, just that it's unlikely to take off in a big way. Where's the pressure?

Sheesh, we might be able to use artist X's work, but we'd need to call their agent, or we can use artist Y's work for $1 per hundred copies, or we can use artist Z's work for nothing. Who we gonna use?

Permalink to Comment

4. JD Lasica on June 9, 2005 7:51 PM writes...

Well, that's why this is going to happen outside of Creative Commons.

As for this:

>Sheesh, we might be able to use artist X's work, but we'd need to call their agent, or we can use artist Y's work for $1 per hundred copies, or we can use artist Z's work for nothing. Who we gonna use?

The answer is: The artists whose works we find most compelling for our audience, as long as it can be done in an easy and inexpensive way.

At Ourmedia, you'll find that the majority of people assign rights to their work that does *not* allow commercial use. Not because they don't want to see their work used in the commercial sphere, but because they don't want to see companies take their work and profit from it and leave them with nothing but the credit. Where's the cash flow, bro?

Permalink to Comment

5. Crosbie Fitch on June 9, 2005 8:30 PM writes...

Yes, I'm not surprised the majority of people aren't keen on relinquishing commercial use.

There's a major paradigm shift here. It'll take a long time for people to adjust.

Creative Commons is farsighted in that it recognises that it would gain little adoption if it simply became the GPL of digital art. It has to offer umpteen permutations so that people can gradually migrate ever closer to CC-AttribShareAlike.

But, anyway, back to the friction issue.

On its own Copyright says this "All rights reserved, but I will be happy to negotiate a commercial license"

If you augment copyright with a price sticker you change it to say "All rights reserved. I do not negotiate. This is the deal. Take it or leave it"

Are you seriously suggesting the latter proposition is more attractive to a potential licensee?

Permalink to Comment

6. Nathan Jones on June 9, 2005 8:33 PM writes...

[Sorry for the really long comment.]

Starting with question two first. I think this is a very important issue, but one that likely needs to be sorted out by the courts. I certainly feel that photographers should be able to take photos and use them, but in this age of copyright extremism and concern about "perverts in parks taking pictures", there is uncertainty that needs legal resolution.

Now onto question one. I'm not sure that a licence is the right place to lay down payment terms. Although I would be interested in a licence clause that states "I guarantee to allow any use, as long as you pay for commercial use". In a country like Australia, where moral rights could cause uncertainty for people wanting to use your creation, this would give the ability to give peace of mind up-front.

As I see it, there are two main things you need to know when you want to use a work commercially:

1. How much will it cost?

2. How do I pay for and obtain the rights?

I believe more creators and rights holders need to better address these questions to make their work readily available. There is also a need for organisations that enable this, and perhaps that's a job for OurMedia.

A licence clause (eg. 10% of profits) can answer the first question, but is that the most appropriate fee for every use? It sounds fair, but it also means I don't know in advance how much it will cost me, and I'll have to keep a record of profits for as long as I'm using the work. What if a creator wants to offer a "pay once for royalty free" option? What if a creator wants to make the fee more or less than 10%?

The second question is equally important, perhaps more so. The licence may offer the work for 10% of profits, but I still need the motivation to find the rights-holder, ask for permission, organise payment... By contrast, I know I can go to Magnatune or Getty Images and pay online.

To conclude, I think there is great value in setting down blanket licence rates, so that there is no "hmm, I wonder how mush THIS one costs" as a customer looks through multiple items at the same site. But if a creator is wise enough (or has the assistance of an intermediary) to enable purchase/licensing via the web, then there is no reason to bury the licence fee in the licence.

I recall last year that Magnatune founder John Buckman was looking into establishing a music clearinghouse using the same licensing model as Magnatune, but which could be used by anyone agreeing to the terms. I wonder how that's going... And I wonder who will step up to offer similar services for non-musical works.

Permalink to Comment

7. Clancy on June 9, 2005 9:04 PM writes...

I'm under the impression that if someone has a CC license with "Noncommercial" in there, it doesn't mean, "Don't ever use my work for profit," only "You must have my permission before using my work for profit." Can't potential commercial users just ask the creator permission, and then they can negotiate royalties? The fixed percentage you're proposing is practical, but it could potentially be more profitable for the creator if he or she were able to negotiate.

Permalink to Comment

8. Nathan Jones on June 9, 2005 9:21 PM writes...

Clancy: you're correct - people can negotiate, and it may result in a better deal for the creator (depending on each party's negotiation skills). But it could also mean the lincesee won't bother. There is a need for a way to say up front "it's easy to licence my work, and here are the costs".

Permalink to Comment

9. Crosbie Fitch on June 9, 2005 9:30 PM writes...

Yes Clancy, I agree.

Copyright says "Anyone, please negotiate".
CC-NC says "Commercial users, please negotiate".
Pre-arranged royalty says "Commercial users, no negotiation, just this specific deal"

Permalink to Comment

10. JD Lasica on June 9, 2005 10:01 PM writes...

Clancy, yes, a CC noncommercial license does mean, "You must have my permission before using my work for profit." In other words, to a commercial entity, it's no difference than full copyright.

Crosbie, not at all. Sure, a flat-rate royalty is one option, but I'm suggesting that we need a system put into place that makes the process painless to the network/device maker -- you negotiate one deal with one broker/representative, not 50 separate deals with 50 content creators whose contact information you may not even have.

The rights facilitator should be in a position to negotiate a higher payout from MTV or Motorola than from a startup wireless device maker. One size doesn't fit all. Make sense?

Permalink to Comment

11. Clancy on June 9, 2005 11:40 PM writes...

I can dig it. And I can even understand why someone would want to broadcast a flat royalty fee; it's quite expedient to do so. The biggest challenge would seem to be putting it in "human-readable" terms, to use CC's parlance.

Despite the fact that I'm a copyleft-all-the-way person (and have been criticized for being too radical about it), I can definitely appreciate what you're proposing. Copyfight rhetoric has been criticized even by some of its advocates for not taking creators' compensation seriously enough, and I think this is a step in the right direction. The difference between traditional copyright and the model you raise is significant; it gets rid of what we know as "fair use" because you can use as much of the work as you want, or the whole work, as many times as you want and any way you want, as long as you're not making money from it. In Lessig's "permission culture" terms, it definitely cuts down on the number of times you'd have to ask permission.

Permalink to Comment

12. Crosbie Fitch on June 10, 2005 7:35 AM writes...

Ok, JD, but you're veering very close to simply re-inventing the publisher.

If the work doesn't have a clear price tag (preset royalty or other simple license), but instead has "This work may be freely copied for non-commercial use. Commercial licensing is managed by JDL Inc."

Then this is tantamount to the original artist submitting the work to a CC friendly publisher called JDL Inc.

Which simply brings us back to CC-NC.

Please forgive my skepticism - CC-NC/PriceTag may be fun to explore - I'm just worried that it further mixes the message to people approaching CC licensing, at the risk of little actual gain.

Permalink to Comment

13. Dr. wex on June 10, 2005 9:50 AM writes...

On the photography issue, I had a post about this a little while back,
Essentially, the base law is still the same - if it can be seen with the naked eye, you can take a photo of it. Layer on top of that the laws you reference about identifiable images and commercial publication. Now layer on yet ANOTHER set of rules having to do with vague interpretations of "homeland security." Blah. Bottom line - I don't think you could release such an image, under the principle of "you can't give away what you don't own." The photographer has a right to take the picture and to use it in some limited ways, but not a broad general right. IANAL, in case anyone has forgotten.

Permalink to Comment

14. James Quintana Pearce on June 10, 2005 9:29 PM writes...

For the first question: I was going to say what you're proposing seems like the traditional copyright, but I think that's been covered. So, from what you're suggesting I don't think you really need a license -- if there is an agency involved why not just have the agency? People can release their art under a CC license, and organise with the agency to handle any commercial uses. The difficult thing would be defining "commercial use". If an image is included on a blog with Google ads is that "commercial use"?

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