Watch out for the Creative Commons catch

by McAfee & Taft
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trademarksPhoto by Kristina Alexanderson, via Flickr, licensed CC BY 2.0

You own a small business and want to sharpen your marketing profile by adding some new images to your company website. You hope to save on costs but not skimp on quality, so you go on the Web and find some nifty photographs that are perfect for your new look. And they’re free.

The webpage states that the photographs “may be downloaded under a Creative Commons Attribution-ShareAlike license for free use, including commercial use; attribution required, see license terms below.” You’re busy, so you don’t read through the links containing detailed license terms. But you’re really excited about the “free use” part, and you download five of the images and have your IT department add them to your revamped business website.

Three weeks later you receive a letter from the photographer’s attorney informing you that you’ve infringed the photographer’s copyrights in all five photographs by placing them on your company website without crediting the photographer by name. What? You thought the use was free. Isn’t Creative Commons that nonprofit organization that encourages the use of licenses that allow free distribution of copyrighted works for the purpose of sharing and building on them?

The answer is yes. But there’s more. A Creative Commons license permits free uses as long as the licensee observes certain requirements specified in the license terms. One of those requirements, typically, is that the licensee credit the copyrighted work to its creator or owner. That’s what the photographer’s webpage meant by “attribution required.” By attributing the photographs, you give credit to the photographer.

Can you really be a copyright infringer by failing to attribute the photographs? It’s possible. Some courts have held that failure to attribute a copyrighted work under a free-use license requiring attribution violates a condition of the license and makes the user an infringer. Other courts, however, have suggested that failure to observe license terms that are not connected to the exclusive rights of copyright owners might be, at most, a breach of contract with uncertain damages. Attribution—not required by U.S. copyright law in most cases and arguably not directly connected to copyright’s exclusive rights—might raise only a contract issue.

If you’re a licensee or a licensor, keep the following in mind.

For licensees:

  • Click through those license terms and study them carefully. Don’t stop reading at “free.”  
  • Always attribute the work if attribution is required. Make sure you follow the licensor’s specific requirements for attribution (including the author’s or owner’s name, the work’s title, the particular Creative Commons or other license used, and any copyright notices).  
  • Don’t alter the work unless the license expressly permits you to do so.  

For licensors:

  • Make your license terms clear and accessible. Avoid unnecessarily numerous links and difficult or inscrutable jargon. If you sue someone for not observing license terms, you don’t want them to be able to claim that you engaged in deceptive trade practices.  
  • Explain what “attribution” means. Not everyone is familiar with the word or concept.  
  • If obtaining attribution is really your goal, consider asking the licensee to add proper attribution or cease using the work. Copyright disputes can be expensive.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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