5 Expensive Problems with Using Creative Commons for Small Business





The goal of U.S. copyright law is to give you legal protection of your original creative work so you control who can profit from it and when. Creative Commons is a nonprofit organization created to provide creators of original works an easier way to give others permission to use their original creative work than U.S. copyright laws allow.

Many people and businesses create content that they want others to freely use in their own commercial and/or non-commercial work, including image, text, audio, and video works. Applying a Creative Commons license to their work makes the public aware of what the owner freely allows others to do with it—without having to obtain written permissions or formal license agreements from the owner.



Applying a Creative Commons License to Your Work

Let’s imagine that you create an e-book and you want others to be able to republish it in any way that they want as long as they attribute you as the owner. Just visit the Creative Commons website and pick the license that best matches your goals for your content. You can choose between six licenses:

Attribution

This license only requires attribution to the owner. Works with this license can be used in commercial or non-commercial new works.

Attribution Non-Commercial

This license is the same as the Attribution license but works cannot be used in new commercial works.

No Derivatives

This license does not allow the creation of any derivative works from the licensed work. Works with this license can be used in commercial or non-commercial new works.

No Derivatives Non-Commercial

This license is the same as the No Derivatives license but works cannot be used in new commercial works.

Share Alike

This license requires that the creator of the new work applies the same Creative Commons license to the new work that the owner of the original work used. Works with this license can be used in commercial or non-commercial new works.

Share Alike Non-Commercial

This license is the same as the Share Alike license but works cannot be used in new commercial works.

In our small business example, you’d simply include the Creative Commons Attribution license icon or language in your ebook, and you’re done. Others can use your ebook in their own blog posts, presentations, marketing materials, and so on as long as they attribute you as the source.

Sounds good, right? Not always.

What happens when you change your mind in the future and want to remove that Creative Commons license? What happens when you find someone else profiting from your e-book and you want to stop them?

There are problems looming in the future.

Using a Work with a Creative Commons License Published by Someone Else

Now, let’s imagine that you maintain a blog for your small business. You need to include images with your blog posts because all of the blogging experts and research studies show that blog posts with images perform better than blog posts without images.

You don’t have a budget for images, so you search on Flickr and choose images that have Creative Commons Attribution licenses applied to them that allow commercial use (because your small business blog is a commercial property). You follow the instructions on the Creative Commons website to appropriately attribute the image to its owner and identify the Creative Commons license. You assume you’ve done everything right and that you’ve followed all of the necessary rules so you won’t be accused of copyright infringement in the future.

Sounds good right? Not always.

What happens when you receive the Getty Images Demand Letter like so many other bloggers and small businesses have in the past several years? What happens when the real owner of the work (who is not the person who uploaded it to Flickr and applied a Creative Commons license to it) contacts you and demands compensation?

Again, there are problems that are very likely to arise in the future.

5 Expensive Problems with Creative Commons

Beware of these common problems to your small business when you apply a Creative Commons license to your own work or use a work with a Creative Commons license:

Creative Commons Licenses Offer No Legal Protection

Creative Commons offers no form of protection to the creator beyond what common law provides. Creative Commons licenses have no legal significance beyond the license itself.

Creative Commons Licenses are Irrevocable

According to the fine print on the Creative Commons website, Creative Commons licenses cannot be revoked once they’ve been applied to a work. If you use a Creative Commons license, make sure you’re not going to change your mind in the future about giving everyone open access to your work.

Creative Commons Licenses are Not Simple

Creative Commons licenses can be updated at any time, and those licenses are not simple. Each is pages long with a lot of legal language in them. Make sure you understand what you’re agreeing to before you apply a Creative Commons license to your work or use another person’s work with a Creative Commons license.

Creative Commons Won’t Help You if You Have Problems

The Creative Commons organization absolves itself of any problems you might encounter with one of its licenses in the future within its terms saying, “Creative Commons gives no warranties regarding its licenses … disclaims all liability for damages resulting from their use to the fullest extent possible … is not a party to its public licenses.” If something goes wrong, you’re on your own.

The Creative Commons License on Someone Else’s Work Might Not Be Valid

A big problem with Creative Commons licenses is the fact that anyone can apply them to any work. For example, many of the Creative Commons licensed images on Flickr, Google, and sites that aggregate images weren’t uploaded by the owners of the images. The Creative Commons licenses applied by the people who uploaded the images (but don’t own them) are completely invalid! If you use one of these improperly licensed images, you very well might get caught and find yourself on the losing end of an expensive copyright infringement lawsuit.

The Takeaway

The good news is that Creative Commons is a great option for bridging the gap between copyright law and open access and sharing of creative works, but it’s far from perfect. The bad news is that Creative Commons gives you no legal protection, and it gives other people permission to use and profit from (depending on the license you choose) your creative work—the very things that copyright laws protect you from.

Be very careful both in applying Creative Commons licenses to your own work and using works created by others that have Creative Commons licenses. Things are not always as cut-and-dry as they might seem.

Image: Creative Commons

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Kelley Keller


Kelley Keller Kelley Keller is CEO of Kelley Keller Law and a 20-year veteran of the intellectual property law field with experience helping businesses of all sizes (including many household brands) identify, manage, and protect their trademarks, copyrights, patents, and trade secrets.

8 Reactions

  1. Aira Bongco

    But I think that it is okay. I have so many authors do this and even if their content is shared all over, it can still be seen that they made the content. So the credit goes back to them and they let other people share their content.

  2. Thank you, Aira, for your comment. Creative Commons is certainly a great vehicle for sharing work online provided the author isn’t concerned with changing the permissions for sharing his/her work down the road or making money from licensing it. What’s important is that the author fully understands the implications of applying a Creative Commons to his/her work and be able to make an informed choice in doing so.

  3. Another thing to consider is that people may not be aware of what giving “Creative Commons” use rights means. I have been in a situation where I used a photo for a client that was uploaded with CC usage allowances via Flickr and did everything correctly. The owner contacted me upset that I used her photo without permission. I explained that I found it under a CC license and she was confused, as she was just checking boxes in Flickr without knowing what they meant. Education is a big issue in this instance and the need for it is something that isn’t going away any time soon.

    • Linsey,

      You’re absolutely right! That’s one of the things I’m trying to do at Innovation to Profits – educate people so they make the right decisions for them about weighing risks and costs. Too many people – especially small businesses with tight budgets – are getting into legal trouble and paying a lot of money when they make mistakes or make the wrong decisions related to copyrights and trademarks!

  4. Anita Campbell

    Hi Kelley, I am glad you wrote this. A lot of people suggest using Creative Commons images on their websites.

    We almost never use them here at Small Business Trends, for the very reasons you mention.

    It distresses me that people seem to think Creative Commons is part of the official U.S. copyright law.

    It’s not.

    Creative Commons is just something some guy made up one day. He had a good idea, but it is still pretty much some guy’s good idea, and not an official part of established copyright law.

    As I say to people when trying to explain it, it’s as if I came up with a better patent system, and imagined all these new patent license terms and called it “Popular Patents” and stuck it up on a website with little badges for people to use. It might be a patent protection system that makes more logical sense than the one we have today, but so what? It’s still just my idea, and is completely outside of statutory law.

    – Anita

  5. Thank you, Anita, for your thoughtful comment. You drive home a key point: Creative Commons is not law!

    Creative Commons is simply a private service provider advocating what is dubbed a substitute, or alternative, to the law. In fact, for all intents and purposes, Creative Commons is an extremely powerful political movement that successfully promotes a “some rights reserved” approach to copyright in lieu of the standard “all rights reserved” approach to copyright law. The organization’s fundamental goal is to reduce restrictions on copyright and strengthen the public domain by adding more works to it, effectively immunizing people who share other’s content online from legal liability. I also think it’s interesting to note that Creative Commons was founded by well-known Harvard Law Professor Larry Lessig at the time he was deeply involved in a legal battle that sought to reduce restrictions imposed by federal copyright law, a fight that ultimately made its way to the U.S. Supreme Court. He lost the case and no doubt channeled his frustration into building Creative Commons, a pay-back of sorts.

    It is critically important that users of Creative Commons understand the deal they’re making when they’re using CC licensed images. Unlike a traditionally licensed copyright, there is no one standing behind those licenses and guaranteeing that they’re valid. Creative Commons is not a party to any of its license agreements and doesn’t take any responsibility for abuse of the system. If you unwittingly use a CC licensed image that was improperly marked (and anyone can apply a license to any work), as Linsey indicated in her comment, you’re still on the hook for copyright infringement. Your argument that you thought the work was available to use won’t help you if you are sued. Because most lawsuits filed against small businesses are settled out of court (it’s usually cost prohibitive to defend the suit), we don’t read about them or hear about them on the news. I ask, where are you Creative Commons when I need you? Caveat emptor – buyer beware!

    That said, the motivation behind Creative Commons is arguably a noble one. We do live in the digital age and information moves much faster than it used to. But – as you state in your comment, Anita — having private organizations usurp the law or create work-arounds isn’t the best way to solve the ¬¬problem. Be assured that the government is paying attention and working to find ways it can facilitate the creation of a robust system for licensing works online. In fact, there’s a public meeting scheduled on April 1, 2015 in the Washington, DC area to explore this very issue. For anyone interested, more information can be found here: events.SignUp4.com/EfficientOnlineMarketplace

    I certainly don’t speak for anyone else, but just as I only bank at institutions backed by the FDIC, I only want to participate in a copyright system girded by federal law and enforced by the U.S. government.

  6. “Creative Commons Licenses Offer No Legal Protection”. This is flat-out wrong or (if you define “protection” in a very stange way) at least highly misleading. CC licenses are legally binding documents.

    The CC-BY-SA license for instance is very similar to the GPL. The free software movement has won countless copyright infringement lawsuits,because the GPL was upheld.

  7. Thanks for commenting, Markus. You raise an interesting topic in your comment. I don’t disagree that the CC Share-Alike license and GPL are similar in intent, but they are managed and enforced in different ways. Creative Commons simply provides a licensing structure for copyrighted works. It does not have any ownership interest in the works being licensed, and does not get involved in managing or enforcing the licenses. (Contrast this to the Free Software Foundation where they are the rights owner and manager of the code being licensed under the GPL.) Hence, if there’s a dispute about the license itself (the terms and what they mean) or the underlying copyrighted work (whether its actually copyrightable and that the licensor actually has permission to license it), the licensee and licensor are left to duke it out themselves – Creative Commons does not get involved in any way, shape, or form. The organization does not offer any legal protection to its users. It’s simply caveat emptor – buyer beware.

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