Articles
Using Flickr photos in the traditional media
carobotero · Bogotá (Colombia) · 16/12/2007 05:58 · 46 votes
This week the Colombian blogosphere has been both revolutionised and united due to the misuse by El Pais (a newspaper from Cali) when they took a photo from Flickr. The photo is in Mariacecita´s Flickr gallery licensed under a Creative Commons (Attribution-NonCommercial-NoDerivatives 2.0 licence) and was included in one of the newspaper´s journals. The original photo was edited (i.e., was amended) and included there, according to the newspaper, "to contextualize information related to a photo exhibition (to be held in Cali soon)."
I have read many of the reactions and comments on this case in the blogosphere (some even from outside Colombia). I think it is the first time this type of issue has created such an interest in Colombia. But from the reactions we can see several misunderstandings, not only on the copyright automatic protection but also about the idea of Creative Commons licences as tools for authors to free some of those rights.
Mariacecita uploaded a picture on Flickr and she did not tag it "all rights reserved". By choosing a Creative Commons BY-NC-ND 2.0 licence, she allowed others to copy, distribute and publicly communicate her work, while reserving the right to modify it. Moreover, she decided to put a condition on the work that prevented others from copying, distributing or publicly using the photo for commercial purposes.
Thus, under these terms of copyright, I can use the photo to illustrate this article without having to go back to the author to ask for permission, but if I want to use it commercially or modify it, I should contact Mariacecita. She might just want to know what am I doing with it but will still authorise the use without any other requirement, or she might ask for payment.
Apparently El Pais made the same mistake that Weekend made in the first court case that was related to Creative Commons licences: journalists from El Pais of Cali, like many people in general, tend to consider that everything on the web is there for their free use. This assumption normally works in this way: I can use everything, but not the other way around: everything that I put on the Internet is not for others to use .
When the photographer ask for an explanation: "why is my photo on a commercial journal if I did not authorise it?", the initial answer from the newspaper was: We did not mean any harm, we just wanted to promote an exhibition. Why did you upload the picture to a place where it can be easily downloadable? One can not tell from the site that the picture is not available for others to use.
The case of Curry vs. Weekend in Holland illustrates this Colombian case, as can be seen on the English translation of parts of the Dutch judge sentence:
“All four photos that were taken from www.flickr.com were made by [first claimant] and posted by him on that website. In principle, [first claimant] owns the copyright in the tour photos, and the photos, by their posting on that website, are subject to the [Creative Commons] License. Therefore [first defendant] should observe the conditions that control the use by third parties of the photos as stated in the License. The Court understands that [first defendant] was misled by the notice 'This photo is public' (and therefore did not take note of the conditions of the License). However, it may be expected from a professional party like [first defendant] that it conducts a thorough and precise examination before publishing in Weekend photos originating from the internet. Had it conducted such an investigation, [first defendant] would have clicked on the symbol accompanying the notice 'some rights reserved' and encountered the (short version of) the License. In case of doubt as to the applicability and the contents of the License, it should have requested authorization for publication from the copyright holder of the photos ([first claimant]). [First defendant] has failed to perform such a detailed investigation, and has assumed too easily that publication of the photos was allowed.[first defendant] has not observed the conditions stated in the License [...]. The claim [...] will therefore be allowed; defendants will be enjoined from publishing all photos that [first claimant] has published on www.flickr.com, unless this occurs in accordance with the conditions of the License."
Therefore, if we assume that there is a chance of a violation of her copyright and an infringement of the licence, what's next? Again Curry vs. Weekend gives us guidelines: the violation of a Creative Commons licence means the violation of the copyright given to the right holder, and accordingly it is she who must seek the remedy. That is, if there is a request to whomever is violating the licence to cease, to avoid continuing the violation, and if the right holder so chooses, financially compensation can be claimed for the damage that wsa generated, which under Colombian law has to be demonstrated. These remedies can be requested directly or before a judge.
But, certainly this step is the right holder´s decision and in practice there are plenty of examples on different strategies. In Chile we have Panda Punk that was solved with a prejudicial agreement that served to install a computer centre in a poor school. In the Netherlands we have the Curry vs. Weekend case upon which I have already commented, that was brought before a judge. More recently I commented on a Colombian situation on my blog and on the Blogscolombia site, the post explanation was enough to help the site understand the infringement and provided the adjustments and the author was satisfied. From Argentina, Ariel Vercelli announced and deployed on the Internet a violation during which he explained the grounds of a possible lawsuit and in this case a piece of mine was involved. As for myself (in this last case) I decided to do nothing except comment on it in my blog. My article was not even licensed but I chose not to use the right holder´s privileges because I thought I would prefer more diffusion (however, the article was soon withdrawn). So, the choices are many, and the decision on whether to enforce the licence and which licence to choose is under the right holder´s sphere. So far, in the case of Mariacecita and El Pais she is not satisfied with the letter of apology, but she relies on bloggers' pressure to make the newspaper understand the misuse and implement remedies.
We must ask, can a commercial newspaper use Flickr photos? Yes, if the author tagged the photo with a Creative Commons licence without the NonCommercial element, he or she is allowing this type of use. What if the newspaper wants to modify the photo? It must seek a licences that does not include the NoDerivatives clause, or directly request the author's permission, but the user (the newspaper) should always make the recognise the authorship of the original work. After the story of the Mariacecita´s photo hit the blogosphere, they started to check on the photo´s used by El Pais, and found that there are some photos illustrating the newspaper´s articles that are taken from Flickr and tagged “Flickr/El Pais”. There is no mention of the author or the copyright regime in any case, suggesting that journalist are thinking of Flickr simply as a free image data base.
It is important to emphasise that the idea of the Creative Commons licences is to be a legal tool for people to change "all rights reserved" to "some rights reserved", to enable the rights holders to say "I want to let others use what I am creating". There are many reasons to do this: diffusion of the work or altruism, among others. The fact is that by doing so the right holder is exercising the control that the law gives him and changes it in order to indicate the option to share his work. This way you, me, El Pais, or any of us can use these works for our own creations, not only works in the public domain, or on behalf of statutory exceptions, but also those that are tagged with an express and wide authorisation to reuse the work on the condition that we respect the framework given by the author.
The impact of this case in the national Colombian blogosphere is worth being mentioned especially for the possibility it provides for us all to learn and understand the context of the licences since they are the part of the system that empowers web 2.0. We have the chance to see how we are all building the rules together for our social practices and how this goes beyond any personal sphere, how it affects others. On the other hand it should be highlighted that the situation created by the newspaper is not to be taken lightly. In fact the risk of litigation and liability in this matter is on the agenda, while the need to create a framework of respect and understanding is not only a complex problem, it is a matter of great interest for the future.
UP TO DATE: Yesterday (December 13th) the journal´s front page showed Mariacecita´s photo and explained what happened, the journal recognized the misuse and apologize for the situation. Moreover, the newspaper contacted us and will include an article about the Creative Commons licenses tomorrow (December 15th). In the end it seems that Mariacecita´s strategy worked, because she did not want money, she wanted recognition and the newspaper to help with the understanding of the licenses.
I have read many of the reactions and comments on this case in the blogosphere (some even from outside Colombia). I think it is the first time this type of issue has created such an interest in Colombia. But from the reactions we can see several misunderstandings, not only on the copyright automatic protection but also about the idea of Creative Commons licences as tools for authors to free some of those rights.
Mariacecita uploaded a picture on Flickr and she did not tag it "all rights reserved". By choosing a Creative Commons BY-NC-ND 2.0 licence, she allowed others to copy, distribute and publicly communicate her work, while reserving the right to modify it. Moreover, she decided to put a condition on the work that prevented others from copying, distributing or publicly using the photo for commercial purposes.
Thus, under these terms of copyright, I can use the photo to illustrate this article without having to go back to the author to ask for permission, but if I want to use it commercially or modify it, I should contact Mariacecita. She might just want to know what am I doing with it but will still authorise the use without any other requirement, or she might ask for payment.
Apparently El Pais made the same mistake that Weekend made in the first court case that was related to Creative Commons licences: journalists from El Pais of Cali, like many people in general, tend to consider that everything on the web is there for their free use. This assumption normally works in this way: I can use everything, but not the other way around: everything that I put on the Internet is not for others to use .
When the photographer ask for an explanation: "why is my photo on a commercial journal if I did not authorise it?", the initial answer from the newspaper was: We did not mean any harm, we just wanted to promote an exhibition. Why did you upload the picture to a place where it can be easily downloadable? One can not tell from the site that the picture is not available for others to use.
The case of Curry vs. Weekend in Holland illustrates this Colombian case, as can be seen on the English translation of parts of the Dutch judge sentence:
“All four photos that were taken from www.flickr.com were made by [first claimant] and posted by him on that website. In principle, [first claimant] owns the copyright in the tour photos, and the photos, by their posting on that website, are subject to the [Creative Commons] License. Therefore [first defendant] should observe the conditions that control the use by third parties of the photos as stated in the License. The Court understands that [first defendant] was misled by the notice 'This photo is public' (and therefore did not take note of the conditions of the License). However, it may be expected from a professional party like [first defendant] that it conducts a thorough and precise examination before publishing in Weekend photos originating from the internet. Had it conducted such an investigation, [first defendant] would have clicked on the symbol accompanying the notice 'some rights reserved' and encountered the (short version of) the License. In case of doubt as to the applicability and the contents of the License, it should have requested authorization for publication from the copyright holder of the photos ([first claimant]). [First defendant] has failed to perform such a detailed investigation, and has assumed too easily that publication of the photos was allowed.[first defendant] has not observed the conditions stated in the License [...]. The claim [...] will therefore be allowed; defendants will be enjoined from publishing all photos that [first claimant] has published on www.flickr.com, unless this occurs in accordance with the conditions of the License."
Therefore, if we assume that there is a chance of a violation of her copyright and an infringement of the licence, what's next? Again Curry vs. Weekend gives us guidelines: the violation of a Creative Commons licence means the violation of the copyright given to the right holder, and accordingly it is she who must seek the remedy. That is, if there is a request to whomever is violating the licence to cease, to avoid continuing the violation, and if the right holder so chooses, financially compensation can be claimed for the damage that wsa generated, which under Colombian law has to be demonstrated. These remedies can be requested directly or before a judge.
But, certainly this step is the right holder´s decision and in practice there are plenty of examples on different strategies. In Chile we have Panda Punk that was solved with a prejudicial agreement that served to install a computer centre in a poor school. In the Netherlands we have the Curry vs. Weekend case upon which I have already commented, that was brought before a judge. More recently I commented on a Colombian situation on my blog and on the Blogscolombia site, the post explanation was enough to help the site understand the infringement and provided the adjustments and the author was satisfied. From Argentina, Ariel Vercelli announced and deployed on the Internet a violation during which he explained the grounds of a possible lawsuit and in this case a piece of mine was involved. As for myself (in this last case) I decided to do nothing except comment on it in my blog. My article was not even licensed but I chose not to use the right holder´s privileges because I thought I would prefer more diffusion (however, the article was soon withdrawn). So, the choices are many, and the decision on whether to enforce the licence and which licence to choose is under the right holder´s sphere. So far, in the case of Mariacecita and El Pais she is not satisfied with the letter of apology, but she relies on bloggers' pressure to make the newspaper understand the misuse and implement remedies.
We must ask, can a commercial newspaper use Flickr photos? Yes, if the author tagged the photo with a Creative Commons licence without the NonCommercial element, he or she is allowing this type of use. What if the newspaper wants to modify the photo? It must seek a licences that does not include the NoDerivatives clause, or directly request the author's permission, but the user (the newspaper) should always make the recognise the authorship of the original work. After the story of the Mariacecita´s photo hit the blogosphere, they started to check on the photo´s used by El Pais, and found that there are some photos illustrating the newspaper´s articles that are taken from Flickr and tagged “Flickr/El Pais”. There is no mention of the author or the copyright regime in any case, suggesting that journalist are thinking of Flickr simply as a free image data base.
It is important to emphasise that the idea of the Creative Commons licences is to be a legal tool for people to change "all rights reserved" to "some rights reserved", to enable the rights holders to say "I want to let others use what I am creating". There are many reasons to do this: diffusion of the work or altruism, among others. The fact is that by doing so the right holder is exercising the control that the law gives him and changes it in order to indicate the option to share his work. This way you, me, El Pais, or any of us can use these works for our own creations, not only works in the public domain, or on behalf of statutory exceptions, but also those that are tagged with an express and wide authorisation to reuse the work on the condition that we respect the framework given by the author.
The impact of this case in the national Colombian blogosphere is worth being mentioned especially for the possibility it provides for us all to learn and understand the context of the licences since they are the part of the system that empowers web 2.0. We have the chance to see how we are all building the rules together for our social practices and how this goes beyond any personal sphere, how it affects others. On the other hand it should be highlighted that the situation created by the newspaper is not to be taken lightly. In fact the risk of litigation and liability in this matter is on the agenda, while the need to create a framework of respect and understanding is not only a complex problem, it is a matter of great interest for the future.
UP TO DATE: Yesterday (December 13th) the journal´s front page showed Mariacecita´s photo and explained what happened, the journal recognized the misuse and apologize for the situation. Moreover, the newspaper contacted us and will include an article about the Creative Commons licenses tomorrow (December 15th). In the end it seems that Mariacecita´s strategy worked, because she did not want money, she wanted recognition and the newspaper to help with the understanding of the licenses.
tags: Bogotá Colombia media-events blog creative-commons-licence media flickr policy law licence
extracted from:Creative Commons
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