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Some challenges of intellectual property law and Creative Commons July 2, 2008

Posted by Raul in copyright, electronic rights, random thoughts, Vancouver.
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[UPDATE – Received comment on my blog – Please see comment below and follow the links. The issue is being resolved and the realtor has made it clear that it wasn’t their intention to violate the Creative Commons license. I’m glad to hear that!]

I have tried to keep a minimal blogosphere/Twitter presence, but I just couldn’t resist writing about this topic. My friend Duane has a day job which is NOT being a photographer, although he does some fantastic photography work. Thus, when Duane has to police the internet to find whether someone is lifting his photos AND violating his Creative Commons license he expends time, money and it is in general, an overall headache.

Given that I can’t ask these questions to my Dad (who would be my go-to guy, normally), and armed with my own understanding of intellectual property law (having taken these courses during my Masters degree), I went to examine the recent case where one of Duane’s photos was lifted, apparently violating the Creative Commons License.

The first thing I did was read the Creative Commons that Duane has on this particular photo. I couldn’t find it off the website of the realtor, because there is no link back to Duane’s Flickr photo stream (the first red flag – no clear attribution).

The second thing I did was to read the realtor’s website upside down. As it turns out, the footer of one of his images says “All images (c) — the realtor’s name —“. Well, sorry to disappoint, but the photo above that exact footer is the property of whomever took it. From what I read on the site, the site owner did not take the photo, so, how can he claim copyright over an image that isn’t his?

The third issue is that for the Vancouver photo of the month promotional, this realtor’s site is using one of Duane’s images WITHOUT ATTRIBUTION. And the fourth issue is that of Duane being the copyright holder. Since the earlier footer implies that ALL images are (c) — the realtor’s name —, by association, this would imply that the photo of Vancouver at night (which you can find here on Duane’s Flickr stream) is also copyrighted by the site owner. Which it can’t because, well, Duane is the owner of that photo!

So what are the implications? First of all, I checked Duane’s CC license on that particular photo. The license is “Attribution-Non-Commercial-Non Derivative“. This means that (a) it should be attributed to Duane Storey (attribution that I can’t find for the life of me on the site that lifted this photo). That also means that no derivative can be done. Therefore, the site is violating the CC license because the composite photo IS a derivative of Duane’s original work.

Why is this a big deal? Well, for starters, because it’s one of those gray areas where people seem to just be entitled to use Creative-Commons licensed photos in whatever shape or form they want. Secondly, it makes (at least me) worried about whether I should even license my photos on Flickr. One of the reasons why I opened some of my own personal photos to licensing is precisely that I expect attribution!

I look forward to hearing from Duane how this issue was resolved. I can understand why Duane is upset, and I hope that this can be resolved quickly. Particularly since this seems to be a worrisome trend as of late!



1. Alec - July 9, 2008

Hello Raul,

I’ve left a long post over at Duane’s weblog about our Vancouver photo contest.

We’ve removed Duane’s picture and are working actively to resolve this. We had no intention of going against the terms of the Creative Commons license.

2. Raul - July 9, 2008

Hello Alec,

I am glad things have cleared up. I will update the post to reflect these changes.

All the best.

3. Third Tuesday Liveblog - Jeff Young on intellectual property and Web 2.0 « Random Thoughts of a Student of the Environment - July 15, 2008

[…] QUESTION FROM DUANE – Flickr photos – licensing (Creative Commons) Duane makes his photos available licensed through CC (see my post on the topic). […]

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