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cc-licenses - Re: [cc-licenses] seeking group comment and input

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Subject: Development of Creative Commons licenses

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  • From: rob AT
  • To: cc-licenses AT
  • Subject: Re: [cc-licenses] seeking group comment and input
  • Date: Mon, 02 Jul 2007 13:48:30 +0100

I am not CC, I am not a Lawyer, this is not legal advice.

Quoting "Dr. Augustine Fou" <acfou AT>:

- since Flickr does not allow photo-specific CC version specification (just
1 of the 6 license-types, not version), how does a Flickr user specify a
version they want to apply to a specific photo; how does a user prevent
Flickr from automatically upgrading the CC version without their consent?

The main CC licenses from version 2.0 up contain an "upgrade clause" that allows derivative works to be relicensed under a later version. Pegging the version number has limited utility given this.

I'm not sure about Flickr's Ts&Cs or how they would upgrade users, but their CC licenses do seem to be stuck at version 2.

- whether PictureSandbox is a licensee of the photo in the case where the
photo appears as a thumbnail in search results presented on the
PictureSandbox website (which uses the Flickr API to return such results),
even if just for a moment

I don't think that duration is a factor. And in the absence of any other permission to alter and collect the work into a thumbnail page, the only permission you have to do so will be that given by the CC license.

Unless you claim Fair Use:

- whether PictureSandbox overlaying a watermark in search results (which
says (CC) image owner's name) constitutes a "derivative work" and therefore
"use" of the photo

Very likely. It looks different but contains the original work, that sounds very much like a derivative work.

- whether PictureSandbox is the licensee in the case where a user uses the
"phreetings" (photo + greeting) interface on the PictureSandbox website ( ) to create a phreeting and send it to a
friend, or whether the user is the licensee of the photo


related: whether PictureSandbox's "phreetings" constitutes commercial use if
the business is commercial but the phreetings feature carries no ads, does
not drive traffic (since it is a private, person-to-person communication).

I would say that it is commercial but do see the detailed guidelines:

- whether PictureSandbox is responsible for policing the contents of a
CC-licensed image to ensure it does not contain someone else's copyrighted
work (i.e. someone stealing someone else's photo and uploading to Flickr,
and applying a CC license to it)


- can PictureSandbox witness/notarize a Creative Commons license between
image owner (the licensor) and the user (the Licensee) when the image owner
is not made aware of this?

CC licenses are public licenses. They are applied to a work and then anybody can use the work within the boundaries set by the license. You do not arrange for the license to apply a single user, so I don't think you could witness/notarize the license in this way. In particular the U.S. licenses are not contracts (IIRC).

What you could do is to use or set up a service that grabs the image metadata at a particular time to confirm that the image was available under that license when you or your customer used it.

related: if PictureSandbox just witnesses the license between the licensor
and licensee, is PictureSandbox a party to the license?

I don't think you can meaningfully witness/notarize a single user of a public license so I don't think this would be an issue.

Depending on your service (which I have not looked at) you could be a host and claim DMCA protection, or you could be a service and look at how e.g. Kinkos handles copyright policing.

- Rob.

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