[cc-community] My photo was used in the magazine / licensing question

Fred Benenson fred.benenson at gmail.com
Sun Nov 4 18:52:23 EST 2007


On Nov 4, 2007 6:40 PM, Erik <irasha at yahoo.com> wrote:

>
> --- Greg London <email at greglondon.com> wrote:
>
> > Unless it was a non-profit entity with a non-profit
> > magazine,
> > they probably violated the NonCommercial clause.
> >
> > Are you saying it was a non-profit organization that
> > did this?
>
> no, I do not - they are deffinately making this
> magazine for profit.
>
> so, lets see, this is how I understand it so far:
>
> (1) (non license related) they are allowed to use
> photograph of a person w/o release form if its not an
> advertisement, if they are not using the photo to
> endorse products or services.
>
> (2) CC License
> (http://creativecommons.org/licenses/by-nc-sa/2.0/deed.en-us):
>
> (a) "Attribution. You must attribute the work in the
> manner specified by the author or licensor (but not in
> any way that suggests that they endorse you or your
> use of the work)."
>
> - they listed my Flickr nickname and that it was from
> Flickr. so, they covered this point.
>
> (b) "Noncommercial. You may not use this work for
> commercial purposes."
>
> - I don't understand this one. is using a photo in
> commercial magzine as illustraion in an article
> considered commercial use? (it sounds commercial)



It sounds commercial to me too, though I am not a lawyer. Not only is the
magazine an ostensibly commercial endeavor (they exist to generate $) but
they would have ordinarily paid for the rights to license this image.

There's some good precedent for the publication of an image from Flickr in a
commercial journal violating the NonCommercial stipulation -- See the Adam
Curry case:

http://creativecommons.org/weblog/entry/5823


Here is another case (perhaps more relevant to yours) of someone taking up
action against the magazine AutoWeek for using their NonCommercially
licensed photo in the magazine:

http://lessig.org/blog/2006/09/autoweek_on_come_on.html

AutoWeek apparently apologized sincerely and they reached and amicable
settlement:

http://lessig.org/blog/2006/09/update_on_autoweek.html




>
> (c) "Share Alike. If you alter, transform, or build
> upon this work, you may distribute the resulting work
> only under the same or similar license to this one."
>
> - they did crop the photo to fit where they needed it
> to be. but it doesn't shounds like this section talks
> about this kind of alternation/transformation.


Again, some would consider the 'syncing' of your photo with text that you
didn't write to constitute a derivative, and that it has been built upon,
and therefore the resulting work must be licensed under BY-NC-SA, which is
what you put the original under.

In addition, cropping the work should be considered an alteration.


>
> (d) "For any reuse or distribution, you must make
> clear to others the license terms of this work. The
> best way to do this is with a link to this web page."
>
> - I don't see anywhere in the magazine anything
> refering to this CC license.


Yes, another good point against their use of your image.


>
> (e) "Any of the above conditions can be waived if you
> get permission from the copyright holder."
>
> - no one contacted me on this.
>
>
I think you have a pretty strong case for going after the publisher here --
at the least demanding them to make a correction during the next
publication, or an apology, or, depending on how aggressive you want to be,
actual royalties. Failing that, you might consider talking to an attorney
about legal action.

They violated your CC license and consequently your copyright -- you should
be assertive and indicate that you do not take this kind of violation of
your rights to your work lightly, and this is why you placed your work under
a particular license.

Hope that helps and let us know how it goes!


F








>
>
> > >
> > > thanks everyone for your replys and input!
> > >
> > > I will start reading those links you provided,
> > though,
> > > so far it looks like they had a right to do it.
>
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