Earlier this week, Mike Hiestand at the Student Press Law Center (SPLC) shared the story of an unnamed school newspaper that is facing a legal threat from a “copyright troll” over the use of an image on their site.
According to the post, the paper was working on an article about the COVID-19 pandemic and sought a stock image that it could use to accompany the writing. To that end, they found a generic photo of a syringe that was licensed under a Creative Commons license.
Since the license only required attribution, the paper added the photo and included the photographer’s name in the caption. However, according to Hiestand, there was a “trap” hidden in the license that required the paper to link to a specific page on the photographer’s website and the paper did not comply with that.
As such, the photographer is claiming that the paper is out of compliance with the license and is demanding over $5,000 for the infringement.
This has heightened concerns that using Creative Commons images is risky. However, the reality is a bit more complex. While there are definitely lessons to be learned from this case, it shouldn’t deter the use of Creative Commons images (or works) in a blanket fashion.
So, Who is Right?
When looking at this case, there are many unknowns. The SPLC article did not identify the paper involved, the photographer involved, the site the image was taken from or any identifying information at all.
While this was likely done to protect all involved, it does make it impossible to give a firm answer on the case.
However, there are a few things that we do know. The original article described the site they found the images on as, “a popular, legitimate CC site.” This does narrow down the potential candidates quite a bit. Second, though we don’t know how the image was used specifically, the article only references “accurately” including the photographer’s name in the caption.
Unfortunately, Creative Commons Licenses are more complex than that. As we highlighted in 2010, the attribution requirement actually has three elements:
- The name of the author and/or licensor
- The title of the work (if supplied)
- As far as practical, the URL that is associated with the work (meaning, in most Web uses, a link to the source)
Also, CC licenses require that the user provide a link to the license itself. This is regardless of whether the work requires attribution, as long as it is being used under the terms of a traditional (Non-CC0) CC license.
In short, it’s very likely that the newspaper’s attribution looked like this:
Photo by Dietmar Rabich
When in reality, it should have looked more like this:
You’ll note that, in addition to the name, it also includes the title of the work, links to the image itself (I used a random image on Wikimedia Commons for this one), and the license.
As such, there isn’t much doubt the newspaper did not include all the information required to complete the attribution requirement under a CC license.
That said, it’s pretty clear that the paper also tried to comply with the spirit of the license, namely by providing clear attribution. Even if they failed to follow the letter of the license, there was no clear intent to infringe.
Given all this, this is something that could have been easily corrected with a request for full attribution, but the photographer instead opted to turn to legal threats and a demand for thousands of dollars. That, in my mind, is disproportionate.
It may be within the letter of the law, but it is against the spirit, especially the spirit of Creative Commons. In the end, the photographer is probably in the right legally (once again, impossible to know for certain) but it’s still a poorly handled case, especially when dealing with a student publication that had no intention to infringe.
Is it Safe to Use Creative Commons Images?
Earlier this month, we looked at whether it was dangerous to use free stock photos. The conclusion was that it was safer than other free alternatives, in particular just taking whatever you find, but there were precautions that you should take to mitigate risks.
That said, free stock photography sites are never as legally safe as paid ones that provide indemnification. For example, if the school paper had used a paid site with this protection, it would be up to the provider, not the paper, to sort the legal issues out.
Creative Commons works are in a very similar position. They are safer to use than random images found on the internet, but there are precautions that you can and should take. Those precautions include:
- Sticking to Major Sites: Major sites are more likely to comply with takedown notices and work to remove images that are included improperly.
- Finding Works Licensed for Your Use: Creative Commons works can provide a variety of restrictions, including non-commercial use and requiring a share alike license. Make sure to find works licensed for your use.
- Following the License Carefully: Being sure to follow the license to the letter of the law, not just the spirit.
To the last point, one tip I’ve found useful is that many Creative Commons websites offer a tool to generate the proper attribution.
For example, on Wikimedia Commons, one only needs to click the “Use This File on the Web” button to get a properly-formatted attribution line. This takes the guesswork out of completing the license.
However, it may also be wise to either stick to works that are licensed under CC0 licenses, meaning that they are free to use without attribution. Also, most free stock photography websites operate under a similar license though, in all cases, it’s still important to check the license and follow any restrictions.
When you use someone else’s work as part of your own, there’s always a risk that the creator will be unhappy, and a legal dispute could erupt. That risk cannot be eliminated, outside only taking and using your own images.
However, that risk can be drastically reduced.
Obviously, the safest approach is to use a paid stock photo library that offers indemnification. However, if that is not practical, a legitimate free stock photography or Creative Commons photography library may be best.
But while they can be relatively safe to use, there are precautions that users could and should take to prevent issues down the road. Those precautions only take a few moments and can spare you significant legal headaches.
It’s important to be aware of issues like the one this school paper is facing not to dissuade you from using Creative Commons sources, but to remind you of the risks and the precautions you can take. Cases like this are still very rare, but they do happen and there are ways to avoid them.
So let this story be a cautionary tale, not about Creative Commons or free stock photos broadly, but about the importance of following the letter of the license. Though the vast majority of rightsholders won’t be as aggressive as this photographer, the fact is, some will.
It is worth remembering.