cc licensed flickr photo by Laurie :: Liquid Paper
You see that cute photo I used? You know the routine. I use compfight to search tags on creative commons licensed flickr photos with the tag peekabo.
Then I download a copy, upload to my server, include in this post, provide attribution, and that is how it is supposed to work.
915 results. I love that. 915 peekaboo photos I can use.
Or so I think.
I was searching a few clicks back and came across this utterly fantastic photo (there is a reason you don’t see it here). I searched on creative commons licensed photos. It has a By Attribution Non Commercial license applied to it, linked under words “Some Rights Reserved”.
But before I could reach for the “All Sizes” button I tripped over this:
Please don’t use this image on websites, blogs or other media without my explicit permission. © 2009 Tywak . All rights reserved.
I don;t care if people reserved the rights to their photo. That is their right. But why the bleeding ***** do you have flickr apply a CC license and then overwrite it with a copyright? This kind of action (and I am hoping it is merely an oversight of not realizing the flickr defaults) totally defeats the purpose of search sites that limit results to creative commons.
Peekaboo! Creative Commons or Not?
What power! They’ve changed the licence to All Rights Reserved.
Just because they tag it CC doesn’t mean it is! It only means they think it is.
The example I use is this pick of me I found on flickr.
http://www.flickr.com/photos/hapgood/400087196/
He doesn’t have the right to CC license my image. I have rights in it as well.
I’m not a celebrity (yet), this isn’t newsworthy, and I am definitely the subject of the photo.
How many other pics on flickr have similar problems?
Uh oh Jared, that means, that like Tom, I have violated you as well
http://www.flickr.com/photos/cogdog/2585347014/
I don’t have the legal legs to make the argument, but to me he is not licensing your image (you own that), but his representation of you? Like licensing a photo of a sculpture?
I’d be really surprised if the default license on Flickr was a Creative Commons variant – it should default to a more restrictive “safer” license and let people nudge it toward openness when they’re comfortable. It’s been so long since I’ve set mine to CC:By that I honestly don’t remember what the default is, but if it’s CC by default, that should be changed because people just don’t understand the implications right away.
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Alan, I would argue that your photo is legal and Tom’s is not.
BTW I do not seek for him to take the photo down – its just my example.
Tom and I were on a private tour of the museum.
You were reporting on an event at a public venue (dare I say performance).
Same goes for this:
http://www.flickr.com/photos/stuart_spivack/2704627157/
Your photo of a sculpture argument only works if the sculpture is in the public domain. If you photograph something under copyright that photo has a copyright yes but so does the original work and the becomes the challenge (and that’s why we use release forms).
Its what I tell my students – CC is a start – but you need to add to it some logic and common sense. How do you know whose kid is in the photo you posted? You assume they have permission and that it passed onto you. I like a better trail.
I’m teaching photography this semester and it is very fun to have the students face the facts about release forms – our University attorney’s office just sent us a new one. They added a line I found fascinating:
I also waive any rights of privacy in the images and likeness, including but not limited to any rights that might otherwise be protected by the Family Educational Rights and Privacy Act.
Makes you think. BTW I’m just being argumentative – I love you people posting my pics.
Jared
Thanks Jared- you know I enjoy the discussion and you are 1000% correct, there are more considerations than “Any photo I take can be cc licensed”. That is a point I forgot is the context of the space a photo was taken.
I am very very hesitant to post kid pics of anyone I dont know or have asked; that’s why most of my photos are dogs.
Yes, we love posting your photos.
This discussion is reminiscent of the Virgin-flickr-Creative-Commons-ad affair – http://creativecommons.org/weblog/entry/7680
The upshot of which – as I understand it – is that it’s not illegal to post images of another person online, no matter what licence is on it. The problem occurs when the photographer or someone else uses the image for commercial purposes. At that point laws about having the right privacy and the right to control how one’s own image is used publicly kick in.
The problem with the Virgin-flickr case was that the photographer didn’t include the non-commercial clause in their CC licence, so Virgin went ahead and used it without consulting him, and without thinking about how the subject would feel about her image being used commercially.
Obviously Jared’s observation about using common sense when taking photos of vulnerable groups applies as well.
There is also the issue of some pre-existing relationship between the photographer and the student governed by other rules, such as the duty of care a teacher has for their students.
The irony of this is that if a teacher takes a picture of a student on an excursion they might get into trouble for posting it on flickr in a way someone else near the excursion who happened to photograph the same student would not.
There is a good discussion of release forms here:
http://www.photosandthelaw.com/articles/modelreleases.html
Interesting to me was the distinction that consent to photograph is not consent to publish.
As with most things legal, believe there to be a bit of wiggle room in implied consent. If Jared wished to pursue take-down or damages, Tom could argue that Jared saw him taking photos. The consent to publish is less easy to prove. But, if Tom mention that he posts to flickr a reasonable person might believe that publication was a possibility, it could be a harder call. Depending on who had deeper pockets and/or the better attorney would likely win, if you could call it a win.
Another caveat is whether the place you are photographing has as a condition of entry restrictions on photography. I just had to turn down putting a photo in the Getty collection in Flickr because it was taken at the Vancouver Aquarium which requires that they grant a license for photos to be used commercially and I am too lazy to do that.
I share your pain over people misusing CC metadata tags that make the due diligence that is required even harder.
Here is a peekaboo photo for you. It is CC and ok with the Vancouver Aquarium for non-commercial use.
http://www.flickr.com/photos/alumroot/734669148/
Check this guy out – http://www.flickr.com/photos/horizon/
Beautiful images……what a waste they can be distributed and stories be told from them……
Brings me to the point…..we talked through this on our podcast with Brent Leideritz, Artist and Web Designer and his perceptions on why the bridge between sharing / caring and coveting can potentially work to the disadvantage of the individual trying to protect ….
http://talkingvte.blogspot.com/2009/03/talkingvte-episode-17.html
That should read…..Beautiful images……what a waste they CANT be distributed and stories be told from them……
Let me further clarify that ……it is essentially being distributed, copied, archived, scraped and forever “farmed” for Yahoo for any number of reasons whether by admission or by future litigation…the point being…..statutes and limitations will always be challenged….
Perhaps Alan you could better elucidate how Flickr could inform it’s clients better as to their digital rights and perhaps demystify Creative Commons to that client AS PART OF THE SIGNUP PROCEDURE……
In other words…..Alan isnt this simply a knowledge gap issue here and what can you do to better inform that process that empowers the individual…besides bring them into powerful conversations like this !!!
I pretty sure the default license on Flickr is not CC. It’s copyright/all rights reserved unless you intentionally change it. I’ve noticed this myself and been happy about it because I do put pictures of my son on Flickr to share with family members but I specifically do NOT want those CC licensed. (Though it might be possible to change the default for a particular account to CC, not sure about that.)
Which makes this all the wierder. This person had to intentionally *choose* a CC license, but then revoked that license and reverted to a copyright in comment. huh?
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