[cc-community] CC lawsuit?

Stuart Spivack stu_spivack at yahoo.com
Wed Sep 20 23:16:34 EDT 2006


It looks like someone is going to file a suit over a
Creative Commons work. A Northeast Ohio blogger claims
that an Ohio candidate has inappropriately used a
photograph in an attack ad. Here are a couple related
posts from said blogger's ...er... blog:

http://ohio2006elections.blogspot.com/2006/09/ohio-house-57th-martin-r-steals-my.html
http://ohio2006elections.blogspot.com/2006/09/have-you-seen-attack-ad-against-matt.html

The NEO blogosphere congregates around a blog called
Brewed Fresh Daily which has at least a couple related
posts:

http://www.brewedfreshdaily.com/2006/09/20/ohio-gop-invites-neo-blogger-to-take-them-to-court/
http://www.brewedfreshdaily.com/2006/09/18/unfair-use/

There are several trackbacks on the posts which you
can follow to see other opinions. Mostly these are
just displays of support from fellow bloggers.

There are several issues. I'm new to the list so these
issues may have been settled but they're open as far
as I can see.

The photograph was licensed under BY-NC-ND. It was
used in a television advertisement. Some people are
alleging that this is a derivative work but I'm not
sure that it isn't a collective work. The photograph
wasn't altered,  merely included in another work. Some
people are also alleging that it was a commercial work
but all the money involved went from the candidate to
the ad agency, the TV station, etc... I'm not sure
it's a commercial use. It's clear that there was no
attribution but the license says that the credit must
be given in a manner "reasonable to the medium" so
that it is at least "as prominent" as other credit
given in the work. I'm not sure what standard for
attribution this sets for television advertising.

I'm sure it's far too early to tell whether this will
have any significant impact on the CC community. I
think it's very likely that the parties responsible
for the tv ad will back down from the threat and
behave exactly as though the photograph were an
all-rights-reserved copyrighted work. Does that in and
of itself mean anything to the CC community? As I
said, I'm not sure that the CC license holder is on
solid ground in his interpretation of the license. How
significant would it be for one of the first CC
related lawsuits to be based on such shaky ground? Are
my doubts reasonable in the first place?

Finally, I was unsure whether this belonged in on the
cc-community list or on the cc-license list as it
discusses the detail of the BY-NC-ND license. Or both?

-Stuart


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