Options When Someone Violates Your Creative Commons License

Portion of C.C. Chapman’s Twitter feed – September 10, 2012

I saw the following tweet the other day by author C.C. Chapman: “Since my photos are licensed under “non-commercial” is this a legal use of my Chevy Volt photo by Yahoo?” The question was followed by a link to an article on Yahoo Auto about GM’s report regarding whether Chevy Volts are being sold at a loss. The photo accompanying the article is C.C. Chapman’s photo of a Chevy Volt that he published on Flickr with a Creative Commons license.

This license requires anyone who uses the image to give C.C. Chapman the attribution, only use it for non-commercial use, and not alter the photo in any way. If the image appeared on Chevrolet’s blog, there would be a strong argument that Chevy uses its blog as a marketing tactic to get people to buy its vehicles; therefore every image on the blog is being used for a commercial use. In that case, the use of the image would have violated the license and C.C. Chapman’s copyright.

However, Yahoo published the article. Yahoo isn’t trying to sell cars. It makes money by selling ads and it may charge advertisers based on the number of hits a page gets. C.C. Chapman could make an argument that Yahoo’s use of his photo had a commercial goal; but Yahoo could fire back that it was reporting the news so its use of C.C. Chapman’s photo was protected by fair use. Yahoo could show that it has a history of news reporting and that its articles are accepted as news, not a marketing ploy.

But let’s say this photo appeared on a commercial website in violation of the Creative Commons license. That’s copyright infringement. What could C.C. Chapman do about it?

  1. Do nothing and be happy about the exposure.
  2. Get the photo removed by sending a DMCA takedown notice.
  3. Send the company a cease and desist letter.
  4. Send a bill with a licensing agreement and a letter that says the publisher has committed himself to paying a licensing fee since he already used the photo.
  5. Sue for copyright infringement.

A lot of people would be happy about the exposure and may opt to do nothing. The downside of doing this is someone else could use your work and make a valid argument that your inaction set a precedent that others could use their work for commercial purposes. You may want to send a letter that offers to license the photo in exchange for the exposure and states if the company doesn’t license it then they have to remove it. That way, you will still get your exposure but you still exert your copyright rights in your work.

If you have questions about how to protect your intellectual property rights, contact an intellectual property attorney (like me) in your community.

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  • http://www.cc-chapman.com/ C.C. Chapman

    Thank you so much for writing this post. I think it will be VERY helpful to anyone wondering about licensing their photos.

    Just to be clear. I have NO problem with how the photo was used.

    In fact, after finding the writers email address I sent him a quick note thanking him for giving me attribution and that I was glad he found my photo good enough to be used. I wasn’t a fan of the cropping of the image, but it wasn’t a big deal in the grand scheme of things.

    Any photographer that finds their image is being used inappropriately should contact the offender immediately. I have had this happen over and over and my personal approach is to first send a polite email notifying them of the infraction. Most times this leads to them taking down the image and then finding another. If it doesn’t then I would have my lawyer send them the invoice for the licensing cost. Two for one special by having her send it to them :)

    • http://www.CarterLawAz.com/ Ruth Carter

      Thanks for sharing your thoughts C.C.! I think it’s great Yahoo used your photo for its article. I’m glad you liked the post.

  • http://twitter.com/GirlsGuidetoLS Alison Monahan

    Is there any place in the CC license that defines “commercial use”? I rarely use photos licensed this way, since I have no idea if my blog(s) would be considered commercial.

    • http://www.CarterLawAz.com/ Ruth Carter

      According to the Creative Commons license (http://creativecommons.org/licenses/by-nc/3.0/legalcode), “commercial” appears to mean “any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.” I think if you’re using an image for a personal blog where you don’t make any money off it, it’s non-commercial. But if your blog is part of a marketing campaign aimed at selling a product or service or you had ads on your site, that is commercial use. I think there’s a gray area if you have ads on your blog but making money isn’t your primary purpose for having a blog.