Long before Creative Commons licensing, Churchill is credited with saying that the UK and USA are ‘two nations divided by a common language’, though he probably nicked the phrase from Shaw, who had in turn plagiarised Wilde.

The latest example of language difficulties is that some Americans believe editorial usage may in fact be non-commercial even though publishers profit from it. This confusion has cast doubt on whether it is safe to use Creative Commons licensing as a means of allowing non-profit sharing whilst protecting photographers’ economic interests from commercial appropriation and exploitation (or theft, as we plain-speaking Brits like to say).

Semantic dichotomy

The semantic dichotomy came to light after Forbes Magazine used a photograph lifted from investment adviser, photosharing site Zoomr CEO and ‘pro-am’ photographer Thomas Hawk. Hawk had released his photo with a Creative Commons (CC) licence that prohibited commercial use and required a byline. He contacted Forbes who apologised and removed the image before Hawk told them they were welcome to use it free of charge provided he got his name alongside.

The photo was reinstated along with Hawk’s byline and that might have been the end of the story. Except Hawk is a well-known blogger and advocate for CC sharing. His Digital Connection blog described the Forbes incident and quickly led to debate about whether he should have been paid, a matter he had no interest in. From there discussion moved to whether editorial use of the image was anyway permitted by the terms of the restricted CC licence he had used.

Some argued that editorial use was non-commercial, that only advertising, promotional or marketing use could be considered commercial. In which case he should not have been paid anyway as Forbes were entitled to free usage under the terms of his license. Nor was his consent required, though they should have given him a byline. This wrangle then spilled over to Joe Reifer’s blog on Creative Commons licensing.

“Non-commercial global publishing empires” ?

It comes as something of a surprise to learn that anyone might believe global publishing empires are in any sense non-commercial just because they package and sell editorial material. Clearly shareholders hope otherwise. But the origins of this peculiar distinction lay in American legal usage of the words in the context of First Amendment privacy rights, which photo attorney Carolyn Wright spells out at her blog

‘Editorial use of a photograph is found in a newsworthy item. In those cases, the person’s right in the use of his image must be evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment, freedom of the press, interest and is broadly construed.

Courts traditionally have defined public interest or newsworthiness in liberal and far reaching terms. It is not limited to dissemination of news in the sense of current events, but extends far beyond that to include all types of factual, educational and historical data, or even entertainment and amusement, concerning interesting aspects of human activity in general.

Commercial use of a photograph usually occurs when the picture of the person has been used purely for “advertising purposes.” While the photograph of a person may be used for something that is sold for profit, such as in a book or a print, that is not the test for a commercial use. Instead, using a picture of a person without consent gives rise to a claim for violating the person’s right of publicity only when it injures the economic interests of the person due to commercial exploitation”.

Transatlantic context

All of which gives some transatlantic context for the bewildering argument that Forbes’ usage was editorial and therefore not commercial despite being a commercial activity. The Creative Commons license Section 4b states:

“You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”

That ‘primarily’ may yet turn out to be a dangerous loophole.

Hawk himself believes ‘As a fully commercial editorial venture Forbes is built primarily as a vehicle “directed toward commercial advantage” and thus should not be able to use the photo simply by using a byline.’ Creative Commons’ General Counsel Mia Garlick agreed: ‘the one court case that has involved the enforcement of CC licenses did find that the use by a commercial newspaper of a CC NC licensed image violated that license condition so I think that you are accurate that there is no distinction between editorial use and commercial use’.

But Joe Reifer points out that Use Plus is a non-profit “worldwide coalition of leading companies, respected associations, and industry experts” whose goal is “to clearly define and standardize the core aspects of image licensing and its management.” Member organizations include Adobe, PDN, Adbase, Jupiter, and Microsoft, as well as EPUK.

Grey areas

Reifer continues: “Here is how the Plus Coalition define these terms”

Commercial Use: A descriptor for image uses that are part of sales or marketing efforts.

Editorial Use: Describes work in a periodical, online, on electronic media, presentation and/or broadcast that is educational or journalistic in nature, and which does not promote a product, person, service or company based on sponsorship.

Reifer concludes: “Forbes’ usage of your image to illustrate a story is clearly editorial use. Whether editorial use is allowed under the CC license is potentially a grey area, but grey areas make me nervous.”

Taken with the First Amendment definitions, there does indeed appear to be some possibility that any editorial use is primarily in the public interest as defined by newsworthiness, and is only secondarily commercial.

In US law these distinctions may be sufficient to allow any editorial usage within the terms of the ‘CC-byline-no derivatives-no commercial use’ license, especially when backed by corporate lawyers funded to prise open access to very large quantities of free photos. It may take a very expensive ten year court case to decide whether words mean what words say in the English English sense or the American English sense.

A further concern is that such CC licenses are irrevocable once issued, so any unintended consequences will be permanent in effect.

As Reifer says ‘I’ve struggled to understand why anyone would use a Creative Commons license for photographs when you can just copyright your images, and maintain control over who uses them. ‘