Creative Commons, contracts and copyright…

How many of you use a Creative Commons branded document to license your songs, text, art or photograph?

<Nancy scans the crowd, sees many hands go up.>

How many of you read anything other than this handy pictograph chart Creative Commons provides?

<Scanning the crowd, only a few hands remain in the air.>

So, how long are you licensing your works for under the very popular Creative Commons’ Attribution NonCommercial Sharealike 3.0 Unported license, as well as in most of the other CC 3.0 licenses?

<silence from the crowd>

Nobody?  Well, would it surprise you to learn that once you license a work through the CC 3.0 license you have given someone the right to use the work perpetually (i.e. forever).

<crickets>

Or how about that you give someone the right to adapt (i.e. make a derivative work) your work forever.

<still nothing>

Sure, the license is technically for non-commercial purposes, but really that is a technicality.  The contract provides that a licensee may not use the works “in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”  Who sets out to make a documentary for commercial advantage or private monetary compensation?  Or choreographs a ballet for the money?  Writes poetry?  Maintains a blog?

In all seriousness, those who use Creative Commons branded licenses should take great care to really understand the impact, both short term and long term, that using the license might have on their career or their works.  More importantly, even though Creative Commons refers to the full document as “Lawyer Readable Legal Code,” like any other contract you should read and understand it before signing it.

Especially since like most contracts, there is a strong likelihood that if you end up litigating a Creative Commons brand license in the United States it will be enforced.   Recently, a federal court of appeals upheld the “Artistic License,” a form of open source license, that the developer of a software for model trains had used to distribute the program.  (Jacobsen v. Katzer)

In Jacobsen v. Katzer, a collective of computer programers who happen to be model train enthusiasts had created an application that they licensed through the Java Model Railroad Interface (”JMRI”) under the Artistic License.  Katzer allegedly incorporated elements of the JMRI program into its competing software application without complying with the terms of the Artistic License.  In addition to claiming copyright infringement due to the breach of the license, Jacobsen and JMRI sought to invalidate a patent Katzer had obtained on elements of the underlying software.  Initially the lower court held that the issue in Jacobsen v. Katzer was one of breach of contract, not infringement of copyright.

However, on appeal the court held that where the use of a copyright protected work falls outside the terms of a license infringement has occurred.  Applying standard contract theory, the Judge held that the license grant in the Artistic License was limited in scope, that the terms of the license served as conditions to the grant and that those conditions are “vital to enable the copyright holder to retain the ability to benefit from the work of downstream users.”

Significantly, however, is that Jacobsen v. Kertzer joins a long line of cases where courts enforce contracts.  Technically the court has declared that the Artistic License is an enforceable agreement.  Breaching it as it relates to the underlying copyright results in copyright infringement because the use is outside of the grant of the license.

But if the license grant is as broad as those included in many of the Creative Commons branded agreements, it might be hard to find a use that falls outside the grant to support a copyright infringement claim.   So when you opt for the convenience of a Creative Commons branded license agreement it is important to take the time to read and comprehend what the contract really means, both for the present and the future.