[cc-community] CC Dragged Into Lawsuit

jonathon jonathon.blake at gmail.com
Thu Sep 20 21:14:36 EDT 2007


Fred wrote:

>The heart of this suit lies in the fact that this woman's likeness
was used commercially without her permission.

Bingo.

Nic wrote:

> I'm not sure about this - if you give me a photo and say that I can use it commercially, how much am I expected to make sure that you've cleared all the necessary rights?

Creative Commons licenses deals _only_ with copyright issues.
It has nothing to do with any other rights.

If you don't get clearance for other rights, then expect to be sued.
(This is something that you learn in media law 101.)

The only question is how much would be considered to be "reasonable"
compensation for damages resulting form failure to obtain the
perquisite rights?

More to the point:
* Has copyright for the photograph been filed with the US Copyright office?
* What specific Creative Commons license was used?

For damages with NC, the photographer has to demonstrate that the work has
been filed for copyright in the US,and that the adds are "commercial"
under both the CC  License, and the jurisdiction in which the case is
brought.   (And since there is case law in the US, regarding
"commercial speech", this is fairly easy to demonstrate.)

For damages with ND, the photographer has to demonstrate that the work
has been filed for copyright in the US,and that the adds are
"derivative" works under both the CC License, and the jurisdiction in
which the case is brought.

If a CC-BY-NC-ND license was used, then the photographer has to
demonstrate that the work has been filed for copyright in the US,and
that the adds are "derivative" works under both the CC License, and
the jurisdiction in which the case is brought, then  demonstrate that
the adds are "commercial" under both the CC  License, and the
jurisdiction in which the case is brought.

If the photo had a BY-NC-ND license, then Virgin is up the creek
without a paddle.

xan

jonathon


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