Development of Creative Commons licenses

[Ryan L Kerns <rkerns AT hawaii.edu>]

The Creative Commons license has made it so much easier for artists to share 
and protect the usage of their work online. The options and flexibility of 
the license allows for such a wide range of usage, but the license seems to 
assume that there is only one original author of the piece being licensed. 
Since the Creative Commons license is designed to promote legally sharing 
artwork with other artists, they must understand the collaborative nature of 
art. My specific background is in photography, and I often work with models 
who then would like to use photos that I’ve taken to promote themselves 
online. I see a need for new options to give specific rights to the model 
that I wouldn’t necessarily give to the general public. 
The current option for photographers and models is the model release form. A 
model release is in no way a copyright to a photo but rather designed to 
protect the privacy and character of a model. Contrary to popular belief a 
model release is not for the photographer but for the publisher of the photo. 
The photographer is not legally liable if he sells a picture of Suzie in a 
bikini and it’s then used on an aids billboard. The company that published 
the billboard is the one liable for character defamation. There are obviously 
serious flaws with the model release form, especially vaguely written ones. 
What’s even more disturbing is a model release isn’t even required if the 
photo can be labeled as art. In 2005 there was the case of Emo Nussenzweig, a 
Hasidic Jew, who had his picture taken without his knowledge in Times Square 
and then used in the photo exhibit “Heads”.  Nussenzweig took the 
photographer to court because he felt it violated his religious beliefs about 
graven im
ages, but the case was dismissed as the photos were labeled as art. The 
photographer also sold 10 prints of the photo for $20,000 to $30,000 a piece 
of which Nussenzweig never saw a penny. 
        Just as the Creative Commons license has made the use of copyright 
much easier and intuitive, the same could be done with the model release. A 
mutual agreement on how the photo should be used would be the idea behind 
this new license option. There should be specifications on if the photo can 
be used for artistic or commercial purposes. If the photographer makes a 
significant profit from the photo, the model should be entitled to a portion 
of it. When a photographer is deceptive and sells a photo that could damage 
the character of the model, he should be held personally responsible. If a 
photographer doesn’t want the model to crop or change any of the photos, he 
should have that right. There are multiple ways to go about allowing these 
options, the easiest way, in my opinion, would be to have the same Creative 
Commons license form but before the photographer can use the license a 
confirmation email is sent to the model for him/her to either agree or deny. 
        To some this might seem like an extra and unnecessary step in trying 
to license your artwork. Isn’t one of the core reasons for the Creative 
Commons license is to protect the artist against character defamation? So the 
same should apply to any model used in a photograph. Also a photographer 
might wish to grant rights to the model to modify the photograph, but not 
allow those rights to public. There is the possibility of a photographer 
working with a large group of models, in which case individual confirmations 
would be very troublesome. It is conceivable that a model could be 
unreasonable in granting rights to the photographer or vice-versa. These are 
situations where the license becomes optional. Just like unauthorized use of 
someone else’s artwork, there are certain agreed upon fair use guidelines, 
but having something like the Creative Commons license can really be used to 
enforce that fair use. The option for model consent should be available for 
those who wish to use i
t, but at the same time it shouldn’t be forced on every photo that uses a 
model. 
        There is already a perfect environment to test the need for these 
options. Flickr.com is the largest photo sharing website in the world right 
now and already has the Creative Commons licenses integrated into the 
interface. Many photographers and models use Flickr as an online portfolio 
for their work and could provide invaluable feedback if these new options 
were tested there. In my own personal experience I’ve already had several of 
the models I work with express interest in having these kinds of rights on 
their images. Even publishers would benefit from not having to bother with 
model release forms when the rights can be embedded directly into the 
metadata of the digital files, especially companies using the images online. 
        While the Creative Commons license is working great in its current 
form, it is natural for it to evolve to meet the needs of certain users. The 
current model releases just are not effective and someone needs to step up 
with new ideas, why not an established institution like Creative Commons?  
Even the acknowledgement of this option is a step towards more equality 
between photographer and model. I don’t expect these license options to right 
all the wrongs that have fallen unto models. If anything though, it might 
educate models in their rights to photographs. As for the email confirmation, 
many message boards already have the exact same script for verifying 
passwords so it would be easy enough to add to the Creative Commons license 
and greatly benefit both models and photographers.