Cease & Desist letter sent to Fotopedia, abuser of Creative Commons

I was sad to discover that photos belonging to both Violet and I are being reproduced without our permission at ‘photo encyclopedia’ Fotopedia.

I’m a firm believer in Creative Commons and copyright reform, and so I license practically all creative work I produce under a Creative Commons Non-Commercial Use Share Alike license. This includes all photos I take (even with my pro equipment) and all blog posts I write, including this one… basically anything which isn’t otherwise covered under an existing agreement with a client/etc or a personal photo of a family member (I don’t want those re-used) is CC-NC-SA.

The abuse of work licensed under a Creative Commons Non-Commercial License in a commercial setting – knowingly and unknowningly – is a well-written subject.

However it is sad and disheartening to discover companies that abuse the Creative Commons License who operate within the image/photo landscape and thus are placed to know better. It is even worse when the foundation of their entire company is based around this abuse.

Enter Fotopedia.

You can go read their mission about about creating a photo-based encyclopedia for humanity, but the bottom line is that they are a commercial entity backed by $3.4m of venture funding that contains mostly Creative Commons Non-Commercial photos as the foundation of their company’s database.

In addition to their venture funding, they sell mobile applications that contain a sub-set of photos, offer other mobile applications for free but with sponsorship/advertising and they solicit commercial partnerships on their website.

Fotopedia is clearly a for-profit entity operating commercially and thus their use clearly falls outside ‘non-commercial use’.

C&D > DMCA, for now

Rather than filing a series of DMCA requests, which I’m legally entitled to, I have decided to send them a formal Cease & Desist letter due to the fact that the Creative Common’s license produces some ambiguity. I’d also like to open a dialogue with them rather than simply embark on a DMCA notice/counter-notice play.

However it is a difficult situation because if I’m right, and Fotopedia shouldn’t have any CC-NC photos on their site, then I can’t see how Fotopedia has any business. I think the Fotopedia service at its heart is interesting, it’s just a shame that it is being run by a commercial entity.

I will keep you posted with their response, but in the meantime here is a copy of my Cease & Desist letter in full.

FOR THE ATTENTION OF THE OFFICER IN CHARGE OF HANDLING COPYRIGHT COMPLAINTS, OTHERWISE THE CHIEF EXECUTIVE OFFICER

Dear Sir or Madam:

Without Prejudice

It has come to my attention that you are operating a web site found at http://www.fotopedia.com. Your web site contains the following copyrighted images belonging to myself, Ben Metcalfe. These can be found at:

• http://www.fotopedia.com/items/flickr-2704019377
• http://www.fotopedia.com/items/flickr-54783051
• http://www.fotopedia.com/items/flickr-152520511
• http://www.fotopedia.com/items/flickr-2704845170

These photos have been licensed under the Creative Commons Attribution Non-Commercial 2.0 Generic license (http://creativecommons.org/licenses/by-nc/2.0/deed.en) and as such may only be used, reproduced or have copies made without permission of the original copyright owner in situations where there is no commercial activity occurring.

However your use of the above images on your website “Fotopedia” clearly falls under “Commercial Use” based on the following criteria (but not limited to):

• You are a Delaware Corporation having raised $3.4m of venture funding (http://www.crunchbase.com/company/fotopedia)
• You solicit commercial opportunities on your website (from http://www.fotopedia.com/company/mission: “For business and partnerships: partner@fotopedia.com”)
• On pages such as http://www.fotopedia.com/wiki/Apture, which includes a copyright image I own, there is an advertisment for your “Above France” iOS application which is a commercial application costing $2.99 in the Apple App Store.

As an aside, I would like to bring to your attention that you have attributed an incorrect Creative Commons license on mine and other images on your site. For example http://www.fotopedia.com/items/flickr-152520511 points to a CC-BY-NC 3.0 Unported license (with url http://creativecommons.org/licenses/by-nc/3.0/) when the original photo on Flickr clearly links to a CC-BY-NC 2.0 Generic license of a different url (http://creativecommons.org/licenses/by-nc/2.0/deed.en). While similar, these two licenses are not identical which further suggests a misunderstanding or bad-faith of Creative Commons Licensing on your company’s part.

Given the above, your use of these copyrighted images falls outside of the narrow permissions of non-commercial use under Creative Commons and as such you have neither asked for nor received permission to use these images, nor to make or distribute copies, including electronic copies, of same. I believe you have willfully infringed on my rights under 17 U.S.C. Section 101 et seq. and could be liable for statutory damages as high as $150,000 as set forth in Section 504(c)(2) therein.

I hereby demand that you immediately cease and desist use of these images.

Based upon the foregoing, I hereby demand that your confirm to me in writing within ten (10) days of receipt of this letter that: (i) you have removed the aforementioned infringing images from your site; and (ii) you will refrain from posting any similar infringing material on the Internet, Application or any other service you control in the future. If you do not comply with my request to remove the infringing images from the web site within ten (10) days from the date of this letter, you will leave me with no other choice but to pursue all available legal and equitable remedies against you.

Sincerely,

Ben Metcalfe
[address redacted]