Photographer Loses Copyright Suit Against Mapmaker Because of Licensing Technicality

August 21, 2015 by Allen Mowery 18 Comments

Creative commons licensing is great, especially for online content creators. It can also be a tremendous tool for gaining recognition through use of your work as you are just starting out in the creative world. However, it can be a double-edged sword for the unsuspecting.

A few days ago, a court in Washington, DC found in favor of a defendant after they were sued by a photographer for allegedly using his work without permission or compensation. Why did the photographer seemingly get shafted in this deal? Because of Creative Commons…

Maryland photographer (and pretty darn good furniture-maker) Art Drauglis discovered that mapmaker Kappa Map Group had used his image entitled “Swain’s Lock” (seen above) on the cover of their Montgomery County, MD map without having asked nicely (or at all), let alone providing monetary compensation.

The crux of the matter, however, is the fact that when Drauglis originally uploaded the photo to Flickr, he did so under Creative Commons BY-SA-2.0, which explicitly states that end users may “copy and redistribute the material in any medium or format” as well as “remix, transform, and build upon the material for any purpose, even commercially.” Well, THAT sucks…

In response to the filing, Kappa stated:

Kappa used the image in the Kappa Map in good faith based upon the representations that the image was licensed for use in commercial applications. On the back cover of the map, Kappa provided the “Attribution” and “ShareAlike” data for the Work dictated by the CC BY-SA-2.0 license: “Photo: Swain’s Lock, Montgomery Co., MD; Photographer: Carly Lesser & Art Drauglis, Creative Commons, CC-BY-SA-2.0.”

When his initial argument failed, Drauglis started clutching at air, claiming that the ShareAlike clause in the licensing meant that Kappa had to give the map away for free. The court found this rather bogus and pointed out that the map was not a “derivative” of the original but rather a “collective work” and exempt from this requirement.

Ironically, Drauglis’ image is still up on Flickr with the same licensing rights.

Why should we care?

Because the sometimes-tricky field of creative commons is something with which not all photographers are familiar. For those with questions about which licensing options you should choose, check out our post about navigating his minefield.

As one online commenter stated,

“The worst thing is the photographer wasted a perfectly good opportunity. Instead of companies seeing that his work was good enough to be used commercially, they’ll now see him as someone who is willing to frivolously attack anyone who does more than look at his work.”

A while back (read: six to twelve months ago) I saw a local business using one of my images to promote their upscale business (yes, cropping out the watermark in the corner), so I went back to check and see what licensing restrictions I had chosen when uploading the image. In my case, I had reserved all rights, so the business is technically in violation. Now, I could sue them in a court of law, but that:

wouldn’t be nice.
wouldn’t boost my professional image.
would probably turn off future clients.
could ruin a possible business relationship with them in the future.

My great debate has been whether to reach out to them and express interest in working with them directly (turning a negative into a positive) or ignore it entirely. If I have nothing else to do next Saturday, I might write them an email…

So…

Be informed, know your licensing, and protect (or share) your images as you truly intend.

[via Tech Dirt | Header image “Swain’s Lock” by Art Drauglis]

About Allen Mowery

Allen Mowery is a commercial and editorial photographer, pseudo-philosopher, and wannabe documentarian killing time amidst the rolling hills of Central Pennsylvania. When not shooting client work or chasing overgrown wildlife from his yard, he loves to capture the stories of the people and culture around him. You can check out his work on his website or follow along on Facebook, Twitter (@allenmowery), and 500px.

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Dave Shemano

i don’t see the technicality, the photographer licensed the image with a permissive license and then got upset that someone was using it and he wasn’t getting paid.
- Aaron W
  
  Yep. Not a technicality in the slightest. If the photographer had wanted to disallow commercial use, he could have chosen a CC-NC license.
aleroe

“Now, I could sue them in a court of law, but that”: 5. Probably wouldn’t get you much money, if they’re just a small local business.
J. Zaring

Most of my stuff is covered fairly well. On FineArtAmerica you cant preview the enture full size image at once, on dreamstime they cover it in watermarks even though I suspect some of my stock photog sales (out of paranoia) are probably being misused. I cringe when I see a logo across an entire image, so I use a very small scan of my signature on the fine art and my regular logo about the same size for anything I post elsewhere. It’s frustrating that people just steal images, but I guess we’d all rather risk it by not plastering images with giant logos so we dont look like morons as photogs. I do understand that most of the time when a photog does this “middle of the phot” watermark, its more than likely out of frustration because something has already been stolen. Just my take on things.
Rex Deaver

There are a range of Creative Commons licenses, including ones that restrict commercial use. Don’t knock CC because one photographer didn’t pay attention to what he was doing.
Matt Ellery

CC licenses aren’t “tricky”, neither are they a “minefield”. Seriously, if you are confused by them at all then answer the TWO questions at https://creativecommons.org/choose/
Razor

I always uncheck the creative commons thing anywhere I upload, deviant art, flickr, I mainly just upload to my site now with full copyright going to me and my company but sometimes, I share ;)
amrothery

The only technicality I can see is that the photographer technically picked the wrong CC license for his work if he wanted to get paid for commercial use.
Arthur_P_Dent

This is why I never use Creative Commons. It’s just an invitation to people to steal your work and use it in ways you might not approve.
Anonymous

Mapmaker follows terms of image CC license, gets sued unsuccessfully.

He screwed up, they did not – this was no technicality, this was someone trying to take back a freely given license.
- Jim Johnson
  
  Yeah, it is a problem in the photography community. We feel so entitled that we think we should get more even when someone is actually playing by the rules. This headline is just another example how so many photographers want to portray themselves as victims.
Chris Parkin

Stupid given he could have used the CC licence and made it non-commercial.
Renato Murakami

Afaik you have to go out of your way to mark a Flickr photo with a CC license (the regular license is all rights reserved) that explicitly allows commercial usage. So there’s no technicality there… Art Drauglis either permited commercial usage and regretted afterwards, or he licensed his photos without even reading what the license entails.

Regular recommendation goes: if you don’t understand CC, cannot be bothered to read what they allow or not (it’s very easy to understand them – https://creativecommons.org/choose/ – on Flickr all you have to do is click on the CC logo), or you are in doubt of what exactly it pertains, choose all rights reserved.

But really, it’s as complicated as a 5 minute read out. I wouldn’t consider it technical or even minorly difficult – it’s extremely clear cut and designed to be so. It’s in the license name even. A CC license that doesn’t allow commercial usage has “NonCommercial” in it’s name, directly.

The only way you can mistakenly label your photo as CC allowing commercial usage is by not even reading the list of options for licensing. There’s no excuse.
mike

He used Share Alike. So does that mean he gets to republish the map book for free?
Cap Knowles

The specific CC license the photographer granted included the requirement that a photographer credit be used whenever the photo is used. The mapmaker ignored that requirement. Odd that the article didn’t mention the fact.
- Critical Vibrations
  
  Wrong…did you read the article? The photographer was clearly credited as required.
  - Cap Knowles
    
    I looked at the map shown in the article. No photo credit was evident. In fairness, maybe the credit was too microscopic to be seen.
Peter Bennett

I have to say I think your response to the infringement of your image is very backwards thinking,

This is business, what does nice have to do with it. It’s not nice to steal people’s images.

Your professional image will be hurt more by the fact that you let people steal from you, is that the image you want out there?

It won’t turn off honest clients, why would it. Do you think they wouldn’t protect their assets?

Last, why would you be afraid of losing a client that steals and obviously likes to avoid paying a fair price. Who wants a client like that? I also know of several cases where someone stole an image inadvertently, the photographer informed them, charged them a retroactive license and then had them as client going forward.

As i said you have it all backwards!