A friend recently called about a letter she had received claiming that she was infringing a photographer’s copyrights in an image she had used in her company’s website and social media sites. In addition to requiring that she cease use of the image, the letter demanded payment of several thousand dollars for the alleged unauthorized use of the photograph. My friend explained that the image was being used under a Creative Commons license, so she didn’t understand what basis there could be for the photographer’s infringement claim.
After investigating the matter, I discovered that my friend was an unwitting victim of a copyright holder who preys on people who use his images under Creative Commons licenses but who do not understand or appreciate the details, terms and conditions of the Creative Commons license agreements.
Creative Commons is a nonprofit organization which provides copyright holders with an opportunity to give public permission to share and use their copyrighted works for free under a series of easy-to-use copyright licenses (see creativecommons.org). There are six different Creative Commons licenses and it is critically important to read and understand the terms of the Creative Commons license that applies to any work you may be interested in using. For example, some of the licenses do not permit commercial use of the licensed work (CC-BY-NC-ND, CC-BY-NC-SA and CC BY-NC); others do not allow you to share or distribute an altered version of the licensed work (CC BY-ND); and others require that you distribute any modifications that you make to the licensed work under the same license terms as apply to the original work (CC-BY-SA). So the first thing you need to determine is whether the Creative Commons license under which a work is offered will accommodate your intended use of the work.
If the Creative Commons license permits your intended use and you acquire the work under such license, then you must comply with all of the license terms in using the work. Providing attribution is a condition of all of the Creative Commons licenses. Such condition requires that a licensed user: (1) provide the following information with the licensed work if it is supplied by the licensor: name of creator(s) and any others designated to receive attribution, copyright notice, a notice referring to the Creative Commons license, a disclaimer notice and a URI or hyperlink to the licensed work; (2) indicate if the user modified the licensed work and retain an indication of any previous modifications; and (3) indicate that the licensed work is licensed under the Creative Commons license and include the name of, the text of, or a hyperlink to, the applicable Creative Commons license (see Creative Commons Attribution 4.0 International Public License, Section 3.a).
In my friend’s case, as an oversight, she did not fully comply with the attribution requirements of the Creative Commons license and the copyright holder discovered this because he actively polices licensed uses of his works for compliance with the license terms. While Creative Commons licenses are irrevocable, the license is subject to the terms and conditions of the license agreement, which state that a user’s rights under the license automatically terminate if the user fails to comply with the license (see Creative Commons Attribution 4.0 International Public License, Section 6.a). Section 6.b of the license indicates that if a user’s right to use a licensed work terminates for failure to comply with the license, the license will be automatically reinstated as of the date the violation is cured, as long as the cure occurs within 30 days of the user’s discovery of the violation. Any such reinstatement, however, does not affect the licensor’s right to seek remedies for violation of the license.
If the licensor of a Creative Commons work is able to establish that the licensee has exceeded the scope of the Creative Commons license or has continued to use the work after the license has terminated due to the user’s breach, then the licensor can pursue an action for copyright infringement. While damages may be difficult to prove in any such action, the costs of defending a claim can be significant and a licensor may be able to recover statutory damages and attorneys’ fees if he or she has registered the copyright in the licensed work prior to the infringement. Statutory damages are determined by the court in its discretion and can range from $200 for an innocent infringement, to $750 to $30,000 for a non-willful infringement, and up to $150,000 for a willful infringement. Understanding and fully complying with the terms and conditions of the Creative Commons license eliminates the risk of a copyright infringement claim by the licensor. Alternatively, if compliance with the attribution or other requirements of the Creative Commons license are impractical for your intended use, you could consider licensing works for a relatively nominal one-time fee under a commercial license, which does not include such requirements.
If you need help understanding Creative Commons licenses, or other copyright matters, Astrachan Gunst Thomas can help. Contact Donna Thomas, Esq. at 410-783-3522 or email@example.com.