Why Creative Commons Content Can Be Risky to Use
Creative Commons is confusing to many people. It’s hard to find a simple explanation of it, and I’ll be providing that here.
Also, from interactions I’ve had, people like the good aspects of Creative Commons but are totally unaware of some of the terrible aspects of it.
I being by explaining what Creative Commons is and how it works. Then we look at six scary things about Creative Commons. They may frighten you from ever using Creative Commons again.
People have accepted Creative Commons, but it’s my view that they are insufficiently aware of the pitfalls of using it. Hopefully, this will help you make an informed decision.
You Have Intellectual Property Rights
Let’s start at the beginning to understand why Creative Commons even exists. As a content creator of any kind, you have intellectual property rights. No, I’m not an attorney and I suggest you hire one if needed. Consider this an overview, commentary, and criticism of the topic, not legal advice.
Any creator gets copyright protection in the US the moment they turn their idea into tangible form like a word processing file, a printed page, a photograph, a painting, a musical score, or whatever. Protection is immediate.
You get additional protections and benefits when you register your copyright with the Copyright Office, but that’s optional. That’s it. You can’t copyright an idea—only the tangible expression of it.
You Can License Your Intellectual Property
As a copyright owner, you can rent your work to others for various purposes. It may be your writing, an image, a video, or anything where you own intellectual property rights.
It’s kind of like real estate. You own the house and have the right to rent it for income.
In the case of intellectual property, you don’t sell your creation outright. You do not issue a transfer of copyright. You can rent your intellectual property, and this is called “licensing.”
The license gives the licensee the right to use intellectual property in one particular way for a specific time. They are not buying your intellectual property; they are paying a fee to use it. They are renting it.
Creative Commons is like a giant clearinghouse for people who want to rent their intellectual property. The bad thing is that you get paid nothing when someone else uses your property.
You are allowing anyone to use your work as long as the person using it abides by the Creative Commons license terms you select. Any creator can license their original work under one of the Creative Commons licenses. Any other person can use the work in accordance with the license terms.
Licensed Creative Commons intellectual property is not free as many people think. You must abide by the conditions of the license.
Now, here’s the big question if you are a content creator. Do you want to release your work into the wild for no compensation, and perhaps no accountability by the person who uses it?
For me, the answer is NO. But I have licensed my work privately for a fee.
Creative Commons is nothing more than a non-profit organization. Creative Commons licensing does not change Copyright, Fair use, or the Public Domain in any way. It is a licensing tool only.
Since this is the case, why bother with Creative Commons at all? That is an important question.
When Creative Commons Gets Scary
Now let’s turn the tables. I just talked about you being able to license your work to others if you wish.
What if YOU want to USE existing Creative Commons licensed intellectual property in YOUR work. The images and other content are not free—there are rules associated with their use. You are taking a risk. IMG That’s why it gets scary and you may find yourself getting scammed or in deep, expensive legal trouble.
. Each license comes with its own risk and restrictions.
Scary Thing #1.
There are 6 different licenses. Each license comes with its own risks and restrictions.
The only possibly safe license, in my opinion, is CC BY and I use it sometimes. That means you have a license to use the text, image, or whatever IF you give credit to the creator. Fair enough.
So, you might provide this attribution: “CC 4.0 BY J.J. Jones” for an image. That’s reasonable. We always want to give credit when credit is due. Except as we’ll see in a minute, some are abusing CC BY, so that’s trouble for you.
Beyond CC BY license requirements only get crazier and that increases your risk in my view.
For example. the next less onerous license is called CC BY SA. Not only does this mean you must give attribution (BY), but you are also required to “Share-Alike (SA).”
Creative Commons says “Adaptations must be shared under the same terms.” So, when you include any intellectual property licensed like this in your own work, you are forced to share your work on the same terms.
Are you sure you want to license your own work that way? You may invest time and money-making adaptations, but you gain no value for your work. You are working for free. And you lose control of it if you do because “Share-alike” handcuffs you.
I have an attorney friend who calls the SA Share-Alike license a “Virus” that keeps spreading. If you use CC BY SA licensed content in your mix, then you become a victim of it.
All the other licenses beyond CC BY SA are even more restrictive, and you may become entrapped if you use one in any way.
For example, CC BY NC ND means you really can’t do anything with the intellectual property except look at it. NC means No commercial use, ND means no derivatives. A third party can only look at it, not use it in any practical way. Perhaps this should be called the narcissist’s license! It’s hard to figure.
These license requirements are the foundation of abuse as we’ll see.
Scary Thing #2
Creative Commons licenses can be misleading. There is far more to using intellectual property other than proper attribution.
Creative Commons emphasizes the attribution in their headlines, but in the small print, they say, “The license may not give you all of the permissions necessary for your intended use. For example, other rights such as publicity, privacy, or moral rights may limit how you use the material.”
How can you know if you are really free to use the Creative Commons-licensed content? You can never know unless you hire a lawyer who will research that particular piece of intellectual property.
Scary Thing #3
You are sometimes forced to show an advertisement in the attribution line. Here’s scary thing #3. We’re seeing far more people using Creative Commons licensed images and other work used as advertising.
Remember, you are required to use attribution exactly as required or be sued, so, you’ll have to trash your book or blog with an attribution line that IMG says something like, CC 4.0 By Wilhelm Vandersnot, Photographer to the Stars, Beverly Hills, Cal. Do you want to be forced to show an ad like that just to use an image or other creative work? Not me.
What if you don’t show the attribution as the original content creator specifies? As you’ll see, it seems some people are intentionally planning on suing you if you don’t show their full “attribution ad” in your work. And you must use the exact attribution because that’s what the license requires. That leads us to scary thing #4.
Scary Thing #4
You may get sued for using Creative Commons licensed content. Some people are using Creative Commons licenses to sue people like you even if you think you are using it legally. Some call these people “Copyright Trolls.”
For example, The Technology and Marketing Law Blog recounted the court case called Philpot v. WOS, Inc. WOS used two Philpot photos, gave attribution, but not “precise attribution,” according to Philpot, so Philpot sued WOS for $150,000 per photo, and he won most parts of his case.
The author of the article said Creative Commons may be weaponizing serial copyright litigants. They look for small Creative Commons licensing errors. When attribution has a tiny error, that gives them grounds to sue for copyright infringement.
It is easy to get sucked into a lawsuit. For example, if you insert a photo from online using Microsoft’s system it presents Creative Commons images for you to include.
You’ll see it includes images that may land you in court because, as in this case, The BY credit is not shown. “Unknown” in the metadata is bogus, even for Microsoft. The missing name of the content creator is a violation of the license and the person will sue you, not Microsoft. Microsoft’s failure for not including it is irrelevant. What do they care?
Also, note this image was marked NC—Not for Commercial Use– so that means you can’t use it in any project where you generate any income at all. I’m showing it under Fair Use but still blurring it because this video is Commercial use.
I think Communications scholar Melody Herr, Ph.D. was right on target. She said, “infringement of copyrighted work offered under a “free” CC license can be quite expensive.”
Scary Thing #5
Creative Commons is home to an abusive Search Engine Optimization (SEO) scam. As TechDirt.com reported, people are actually changing the photo attribution credits on Creative Commons images. They are allegedly stealing credit because Creative Commons infrastructure allows that to be easily done.
Then the person sends an email to everyone using the image and says, “Hey, you’re using my image, so how about linking back to my website?”
But it’s all a fraud to con you into giving these people SEO bank links. That’s not part of any Creative Commons license. Sometimes the link is to a site totally unrelated to the photo. In all cases, this is a nasty little scam.
So, all this is the ugly, risky world of Creative Commons.
Scary Thing #6
You get almost no legal protection from them. They may file Amicus Briefs in court cases to let their opinion known in rare cases, but that’s about it.
If someone sues you for anything regarding the licensed content you use, you are on your own. Last I checked Creative Commons had 1.6 billion items under license and only got involved in 12-14 court cases since 2001. These were not defending individual users but were more general in nature.
You will have to defend yourself and win or lose, these legal cases cost a lot of money.
What’s the bottom line?
Know what you’re getting yourself into. Creative Commons can be high-risk unless you are very careful.
You’ve seen the reason Creative Commons exists, and the Scary parts of it from my perspective. Ultimately, the choice of using Creative Commons is up to you.