"Creative Commons" © 2011 Kristina Alexanderson, used under a CC BY-SA 2.0 license: www.flickr.com/photos/kalexanderson/5996465579
Creative Commons licenses are powerful tools, enabling work to be easily shared and used. Before you apply any of these licenses, you should know exactly what you’re sharing under what terms. People using your work are depending on you to know! Misunderstanding or ignorance on how to use Creative Commons licenses can lead to costly, time-consuming disputes as this case study will show.
In 2007, the family of Texas teenager Alison Chang sued Virgin Mobile and Creative Commons in Texas District Court on claims of invasion of privacy, libel, breach of contract, and copyright infringement after Chang’s photo was used in an advertising campaign by Virgin Mobile Australia (Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009)). Chang’s photo was taken by Justin Wong, her youth counselor, who posted the image on Flickr under a Creative Commons license, specifically the CC-BY-2.0 license which allows for commercial use with required attribution to the copyright owner.
Virgin Mobile Australia’s advertising campaign “Are You With Us Or What?” used images found on Flickr combined with ad slogans. Chang’s photo was superimposed with the phrase “Dump Your Pen Friend,” allegedly subjecting Chang to ridicule and damaging her reputation as claimed by the lawsuit. Virgin Mobile Australia included the URL to Wong’s Flickr page in the advertisement, satisfying the attribution terms of the Creative Commons license granted by Wong.
Several issues about Creative Commons licenses are featured in this case. First, Chang’s claims against Virgin Mobile alleged violations of rights separate from copyright concerns that Creative Commons addresses, namely rights of privacy and publicity. Although Wong owns the copyright to the photo he took of Chang (a property right to the tangible photo), he does not own Chang’s intangible “image.” Rights of privacy and publicity are personal rights that a person has to one’s own name, likeness, and image. Depending on the jurisdiction, anyone using a person’s image for commercial purposes may need to obtain permission from that person or a legal representative. Chang argues that, regardless of the Creative Commons license granted for the photo, Virgin Mobile should have obtained permission before using her image in advertising. The important takeaway is that Creative Commons licenses do not address rights of privacy and publicity. If you want to use a work for commercial use that is licensed under Creative Commons and includes a person’s image, you may still need to complete additional steps to secure permission to use that work.
Second, neither the subject of the photo nor the photographer knew how Creative Commons licenses exactly worked when the photo was first posted on Flickr with the license. Upon seeing the Virgin Mobile advertisement, Wong asked In the Flickr comments section “do you think virgin mobile will give me stuff [sic]?” and Chang asked “what does that mean-CC license [sic]?” Creative Commons licenses are a wonderful thing when they are understood and work as intended. Copyright owners uploading work to Flickr or any other website do not have to grant any Creative Common licenses at all and, if they choose to grant the licenses, have the choice of “commercial” or “non-commercial” use licenses. Wong should have considered exactly how he wanted his image of Chang to be used by others before he selected the Creative Commons license. Virgin Mobile would not have found his photo had it not been for the Creative Commons license he applied. Let his experience be your education. Ideally, under the license that you knowingly select and you deliberately grant, there should be no surprises when you see your work used under the terms of the license.
As for the lawsuit’s outcome, Virgin Mobile Australia’s motion to dismiss for lack of personal jurisdiction was granted due to insufficient minimum contacts with the state of Texas. Although the case did not proceed so that the juicy issues discussed above were addressed by the court, it is still a good example of why it is important to understand the terms before selecting a Creative Commons license.
IMPORTANT POINTS TO CONSIDER PRIOR TO LICENSING WORK UNDER CREATIVE COMMONS
(1) Make sure you own the rights to the work and the work is copyrightable
Creative Common licenses can only be granted by the copyright owner or his/her authorized representative. Copyright is an area of intellectual property law that provides protection for original creative works by giving the copyright owner a bundle of rights to the creative works. Copyright owners have control regarding the terms of use and distribution of the work. Sometimes, the person who created the work is not copyright owner. If you created work as part of your regular job duties, then your employer may own the rights to the work. If the work was created under an agreement, you should check the agreement terms to see if the rights to the work were assigned to someone else. Under these circumstances, you may not be the one to decide which Creative Commons license to apply. When in doubt, check with an attorney.
Creative Commons licenses can only be applied to works that are protected by copyright. Copyright does not protect the facts or ideas underlying the creative expression – it only protects the tangible work itself. In general, the types of works protected by copyright include but are not limited to the following:
- Books
- Scripts
- Websites
- Blogs
- Poetry
- Essays
- Photographs
- Visual images
- Certain compilations of data
- Films
- Video games
- Musical compositions
- Audio works
(2) Make sure you are comfortable with issuing a non-revocable license
Creative Commons licenses are non-revocable. If people obtain and use your work appropriately under the terms of a Creative Commons license you granted, you cannot stop them. You have the ability to stop offering your work under a Creative Commons license, but bear in mind that any work already in circulation under the Creative Commons license may still be used under the license terms. Think carefully when choosing a Creative Commons license and make sure you are comfortable with the thought of others using your work under the license, even if you stop distributing the work in the future.
(3) Make sure you specify what you are licensing
Creative works come in all sorts of formats, such as text, image, audio, and video, and sometimes in combination of formats. Creative Commons allow you to specify what elements of the full work fall under the Creative Commons license. This is helpful if you want to share some, but not all, parts of your work. And this is particularly important if you do not own the copyright to some elements of the full work. For example, your website may include text, images, and videos. If you are the copyright owner of only the text, you can specify within the metadata of the Creative Common license and also within your legal notice that the Creative Commons license applies to the text only.
As Creative Commons states, “We all admire generous souls. But if you want to be generous, we want you to think carefully about it before you are.” CREATE Legal agrees and we hope that this Creative Commons blog series has enabled you to become a more informed grantor of Creative Commons licensed work.
For more information on Creative Commons licenses and their basic components, read Part 1 and Part 2 of our Creative Commons blog series or visit www.creativecommons.org
Coming up: Part 4 of our blog series will provide tips on how to use Creative Commons content and properly attribute works under Creative Commons licenses. Follow us on Twitter and like us on Facebook to be the first to read our new blog posts!
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