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

Terry Hancock hancock at anansispaceworks.com
Mon Nov 5 16:45:54 EST 2007


Erik wrote:
> (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)

In general, yes it is.

There is some latitude under law for use of photos in news articles, as
free speech/free press issues are sometimes considered to trump
commercial copyright.

However, I suspect they probably still can't get away with this one.

You should realize that periodical publishers often take chances on this
kind of thing and don't always understand what they are doing -- they
are hoping they won't get sued. They are probably doing this sort of
thing out of ignorance and the fact that no one has challenged them on it.

> (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.

At this point, it is very unclear to me what the SA copyleft
specifically binds for a photograph. Merely cropping a picture is
considered too little change to form a derivative work, so it's just
"use" of the work.

Combining an image with text apparently does NOT invoke SA, as this is
regarded as a "collective work". Some have expressed distaste with this
fact -- a point I can sympathize with, but I can also see serious
practical reasons why it would be a problem if it were to be considered
binding.

That doesn't leave a whole lot. Maybe collages, composites, or mosaics.

> (e) "Any of the above conditions can be waived if you
> get permission from the copyright holder."
> 
> - no one contacted me on this.

>>>so far it looks like they had a right to do it.

No, I don't think they did.

I'm assuming that you will be satisfied if you are simply paid for this
work, right?

If so, what you should do first is send a letter to the editorial
department of the periodical, explaining that they have exceeded the
licensed use of the work, and that their commercial use requires payment
of your fee (and quote what you expect them to pay -- you should quote
the highest reasonable fee: they are not in much of a bargaining
position but you want them to pay instead of fighting it).

If that doesn't work, it's probably time to find a lawyer. Then they can
send the same request on letterhead, and failing that, sue the company.
The CC non-commercial section has stood up in court before, so I suspect
you'd win if it came to that.

If you're looking for something more punitive, that might be trickier.

Cheers,
Terry

(Not legal advice, because I'm not a lawyer. But this is what I'd do in
your shoes. ;-) ).

-- 
Terry Hancock (hancock at AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com



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