Flickr/Getty stock deal breaks Creative Commons licenses

I think it’s a very interesting and exciting move for Flickr to partner up with Getty Images to provide a stock photography avenue for it’s members.

However, according to the Getty Images FAQ participation in the Getty Images stock program requires you to move your Creative Commons licensed images back under full copyright.

That’s odd, because not only does it go against the notion that Creative Commons Non-Commercial Use still reserves the work owner full rights for commercial use, but you can’t actually revoke a work away from it’s Creative Commons license once it has been made public.

Let’s look at this in some more depth. First off, the ‘fine print’ from the FAQ:

Can I sell my Creative Commons-licensed content?

There is a chance one of your Creative Commons-licensed photos may catch the eye of a perceptive Getty Images editor. You are welcome to upload these photos into the Flickr collection on Getty Images, but you are contractually obliged to reserve all rights to sale for your work sold via Getty Images. If you proceed with your submission, switching your license to All Rights Reserved (on Flickr) will happen automatically.

If you’re not cool with that, that’s totally cool. It just means that particular photo will need to stay out of the Flickr collection on Getty Images.

(emphasis mine)

Implying Creative Commons is bad for business

What I don’t understand is that, assuming you are offering your photos under a Creative Commons Non-Commercial Use license (aka ‘CC-NC’, which is the most popular and usual CC license option), there is nothing that I can see that is incompatible with Getty Images selling your work commercially while it also remains under a CC-NC license. After all, CC-NC means that you still reserve full rights for the use of the work in a commercial setting. In fact, I know this very use-case is built into CC-NC.

I would have thought that 100% of Getty’s customers would fall outside of the non-commercial use and as such there is no loss or detriment Getty (or the photographer) if they keep their work under CC-NC while Getty sells their work under separate commercial license.

Creative Commons is perpetual

…ie you can’t reroke it. Flickr offers it’s members to license their photos under Creative Commons 2.0 license, which says:

7. Termination

2. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

(emphasis mine)

Which means that you can license the work under another license(s), but you can’t revoke the CC license for the length of time the work remains under copyright (usually 50 years, but varies based on jurisdiction and type of work) unless you totally remove the work from the public domain – ie stop distributing it.

So technically, Getty can’t have you bring your photograph back under full rights reserved copyright if you have been distributing under CC before.

Why this matters

This issue concerns me because I put almost* all of my photographs under Creative Commons Non Commercial Use license (I tend not to release identifiable photos of other people under CC for privacy reasons). Part of the reason for doing that is because I’m a big proponent of the notion that CC’ing work is commercially positive because it increases the distribution of your work. That means more people see your work; which leads to a greater chance of someone wanting to buy the work/license of the work for commercial use or commissioning you to do some photography commercially for them.

And Flickr has been a big proponent of that too.

Getty pushing Flickr (and/or parent Yahoo!) into an agreement that binds it’s members to move their photos back into full copyright in order for them to participate with this program is a slur towards that mantra.

I don’t believe Getty actually needs to worry about CC eating into it’s business but clearly Flickr were unable or unwilling to persuade them otherwise. I find that bit perhaps most disappointing of all; I thought Flickr were defenders of Creative Commons – clearly not.

I very much hope the otherwise great people at Flickr come back to the community with an official response to this issue. In the meantime, I hope photographers who, like me, believe in Creative Commons, will make their feelings known to Getty and Flickr by choosing not to participate in this program until these issues are addressed.

Update: I’ve asked Flickr for comment on this issue on the Getty Images Flickr Group (sadly there is no comment option on the Flickr Blog)

10 thoughts on “Flickr/Getty stock deal breaks Creative Commons licenses

  1. Hi Ben,

    Totally agree, they should not be forcing people to remove the CC-licence.

    I think Flickr is totally right though to allow people to change the licence policy attached to their photos. Whilst you’re correct in that CC licences can’t be revoked, there is no onus on the copyright holder to always advertise that fact. For people who accidentally CC-licence their photos, it’s only fair that they can remove that licence and hope no-one notices.

    That said, I think there’s an opportunity for a website which scans Flickr for CC-licensed photos and proxies them, so that they’ll always remain available within the commons….

    Frankie

  2. Ben, in principle I agree with you but just a technical point. You can change the license from CC to another license. All it means is that whoever used it previously still maintains the old license. This of course creates a problem if it was share-alike, etc.

    On a slightly related note, we’ve started playing with CC at Al Jazeera : http://cc.aljazeera.net

  3. Ha. I’ll sit back and wait for a Getty customer to license exclusive rights to a photo for a national ad campaign or a book cover, and for that same image to be used by a competitor who grabbed it while it was still CC.

    I wonder who will be liable for something like that. If the Flickr/Getty contributor contract is anything like the Getty contributor contract, all liability will rest with the contributor should there be a lawsuit.

  4. your point about the CC-NC makes sense to me. I guess that while it is a good thing to see Getty Images utilisng Flickr in some ways, they still aren’t so good with the community and social aspects of the site. I’m not a good enough photographer to have Getty interested in any of my images, but I don’t think I’d like to change my CC-CN licensing even if they did because it goes against what I consider to be a central part of Flickr, and that is my choice to share my images.

  5. I think the license of the image can still be changed from a CC to a copyrighted one, so Getty isn’t doing anything wrong. But if someone has already downloaded the image when it was under the CC license then he is allowed to use and distribute it perpetually. So Getty’s move is irrational. I am not a lawyer and do not know how the courts will handle these things. Would be interesting to know how the image downloader would prove that the image was in CC when it was downloaded. Does he keep a screenshot of the flickr page where he found it ?

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