The importance of taking a long view, even with Creative Commons licenses

Over the past year or so, I have noticed more and more people using Creative Commons branded licenses with their creative works.  Creative Commons licenses are form licenses (similar to those you can find through Nolo Press) with a twist.  That twist is what makes Creative Commons unique.

In their own words:

Creative Commons is a nonprofit organization

We work to increase the amount of creativity (cultural, educational, and scientific content) in “the commons” — the body of work that is available to the public for free and legal sharing, use, repurposing, and remixing.

CC provides free, easy-to-use legal tools

Our tools give everyone from individual creators to large companies and institutions a simple, standardized way to grant copyright permissions to their creative work. The Creative Commons licenses enable people to easily change their copyright terms from the default of “all rights reserved” to “some rights reserved.”

So Creative Commons gives licensors (i.e. creators or copyright owners) the ability to license their works to the public in general, and not to a specific user.

The licenses seem like a good idea because many people who upload content on the internet create as a hobby and are excited when they see their works being used on other sites.

However, as with anything else in life, it is important to read the (not so) fine print.  In the popular Creative Commons’ Attribution NonCommercial Sharealike 3.0 Unported license, as well as in most of the other CC 3.0 licenses, the license term is perpetual!  I.E. forever!

Works made available under a Creative Commons license are generally available to the world to make derivative works, forever.

Technically, the license is for non-commercial purposes.  However, Creative Commons has not defined what is “non-commercial,” and its attempt seems to make the category broader than “not-for-profit” uses.  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?

Those who choose 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.

To learn more about my practice visit my practice web page , or feel free to contact me.

About Nancy Prager

Nancy Prager is an attorney based in Washington, D.C. She represents a wide range of clients on matters from intellectual property to estate planning. Before starting her own practice, she practiced with firms in Memphis and Atlanta, as well as providing business development services to technology companies. She launched her practice to offer strategic legal services to clients at an affordable rate. Additionally, Nancy is a sought after speaker and writer on issues related to the convergence of intellectual property, technology and media. Nancy was asked to write a series of commentaries for News.com on the emerging legal issues related to the transmission of content on the internet. She has spoken to organizations and conferences around the country on issues related to the convergence of technology, content and intellectual property, as well as strategic legal issues for companies, individuals and artists. Journalists often rely on Nancy as a resource for emerging legal issues. Nancy has a strong commitment to social justice. She has founded, or co-founded, a number of organizations and programs that provide tangible services to their constituencies. For example, while a student in law school she developed the Domestic Violence Advocacy Center that provides legal services to victims of domestic violence. Additionally, she has been involved with a number of organizations that provide services to children and their families, including serving on the boards of the Harwood Center and Porter Leath Children’s Services. She is a graduate of Wake Forest University School of Law and the University of Wisconsin, Madison. She is a member of the District of Columbia Bar, the State Bar of Georgia and the State Bar of Tennessee. She has been a member of a variety of legal organizations including the Copyright Society of the USA and the American Bar Association.
This entry was posted in copyfight, copyleft, copyright, Copyright Policy, Creative Commons, Creative Content Online, Uncategorized and tagged , . Bookmark the permalink.

One Response to The importance of taking a long view, even with Creative Commons licenses

  1. Alex Grant says:

    Thank you for that clear and concise explanation. Very helpful!

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