CC HOWTO #2: How to use a work with a NonCommercial license

In addition to Attribution, some Creative Commons licenses limit the permissions they grant to non-commercial uses only.

The Human Readable summary of the NC license says,

Noncommercial. You may not use this work for commercial purposes.

The relevant language in the Legal Deed says,

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

This means that as long as you’re not making or trying to make money from your use of the licensed work, you’re okay. Common categories of non-commercial uses include educational uses, personal uses, fan uses, and just-for-fun posted-to-YouTube uses. Meanwhile, any use of a work for which the goal is to make money is not permitted under the NC license, even if the context itself is not commercial.

What seems to trip people up about the NonCommercial licenses is the difference between “non-commercial” and “not-for-profit.” It’s possible to operate in a non-profit setting and make a commercial use of a work, and it’s also possible to work in a for-profit setting and make a non-commercial use.

A pair of examples

A commercial use in a non-profit setting
Members of the not-for-profit Historical Widget Society would like to sell calendars as a fundraiser for their widget preservation efforts. They find a group of historical widget enthusiasts on Flickr, and notice that many of the photographs were released under Creative Commons licenses. Can the Widget Society use photos released under NonCommercial licenses in its fundraising calendars? No, because the calendars are “primarily intended for or directed toward commercial advantage or private monetary compensation.” Even though the “private monetary compensation” will be collected by a not-for-profit, the purpose of selling the calendars is to make money, which makes the use commercial.

A noncommercial use in a for-profit setting
The CEO of a profitable widget manufacturing company is retiring. For her retirement party, some of the staff get together one weekend to make a humorous video chronicling A Day in the Life of the CEO. The video will only be shown at the retirement celebration, and the CEO will get a copy on DVD as a gift. The staffers decide they’d like to set the video to music, and find a nice little BY-NC-licensed song on ccMixter. Can they use it? Yes, because the video for the CEO is not “primarily intended for or directed toward commercial advantage or private monetary compensation”. No one is selling the video, using it to sell something, or being paid to create it, so it’s a non-commercial use.

Threee pairs of mini examples

  1. Using an illustration on a birthday party invitation = Non-commercial
    Using an illustration on a charity auction invitation = Commercial
  2. Using a song as the soundtrack to a collection of home videos for the family reunion = Non-commercial
    Using a song as the soundtrack to an advertisement for a Family Reunion Travel deal = Commercial
  3. Using a photo on a personal website that has no ads = Non-commercial
    Using a photo on an ad-supported website = Commercial

Every situation is different, and these examples are intentionally simplistic. Before using an NC-licensed work, always take a moment to consider whether your use has anything to do with making money or selling something.

Two things to keep in mind

  1. Creative Commons licenses do not affect your fair use rights. If you have a commercial use in mind that is also probably a fair use, the application of an NC license will not stop you from making that fair use.
  2. If you would like to use a CC-licensed work in a way that is not permitted by the license, you can ask for permission. Copyright holders are free to offer as many different non-exclusive licenses as they like. NonCommercial licenses don’t rule out the possibility of commercial use, they just mean the copyright holder wants you to ask first, and possibly pay for the privilege.

[This project was inspired by some conversations on the cc-community listserv lamenting the lack of understanding among many users of Creative Commons-licensed work. I'm taking the material I use in my workshops, mixing it up with CC's extensive documentation, and posting the results here. If you have ideas for topics you'd like me to cover, let me know. If you think I got something wrong, please let me know so I can fix it. I am not a lawyer, and these posts should not be construed as legal advice.]

18 thoughts on “CC HOWTO #2: How to use a work with a NonCommercial license

  1. O Great CreativeCommons Guru!
    I was rocked a bit by the ad-supported website mini-example. Just to be clear — if we’re designing a website with, say, Google AdWords advertisements displayed on the site, reproducing/modifying NC-licensed work is out of bounds?

  2. Hi Lev! I used to think that a blog or website with Google ads was not sufficiently commercial to rule out the use of works with NC licenses, but my sense of the emerging best practices has changed that. Practices I’ve been seeing suggest that any site that uses ads is considered commercial.

    For example, the free travel website Schmap is ad-supported. They uses images they find on Flickr to illustrate their guides, and if a photo has an NC license it is Schmap policy to ask for permission to use it. This suggests to me that Schmap’s lawyers have interpreted the NC licenses as excluding websites like Schmap from the permissions granted, even though it is a free product. I’ve seen similar policies from other free, ad-supported sites. I also get the sense from listservs and forums that many people who choose NC licenses object to ad-supported websites using their stuff.

    Again, I’m not a lawyer, and I wouldn’t be surprised if from a strictly legal standpoint ad-supported sites fell into a gray zone. I waffled about whether I should include that example because I wasn’t sure on the legal technicalities, but I decided to keep it because it seems to me like there is something approaching consensus within the CC community that ad-supported sites are considered commercial.

  3. Molly,

    Great post, and very helpful. I hadn’t given any thought to websites with ads, but now that you’ve pointed it out, it makes sense.

  4. Okay, I thought of another use case over the weekend. Organization A is a University non-profit with some functional units that use a fee-for-service funding model. That is, some funding comes from the University, but some comes from fee-for-service contracts with other University departments.

    The website for Organization A is in some ways a business card for the group’s services (encouraging other University departments to hire them), but in large part simply tells stories about successful green building innovations at the University.

    Should they ask permission to use BY-NC licensed works? My gut says 1) ask permission just to be safe, and 2) it’s not that big a deal. But I thought I’d throw the use case out there, because we all love getting nit-picky about this stuff.

  5. Hi Molly,
    about the discussion on “Using a photo on an ad-supported website = Commercial”: it is not unusual in the netaudio/netlabel world to place some ads on the website, because these netaudio portals and netlabels act as a promotor for this music, and the artists know that this promotion costs money to run servers, and therefore won’t protest: see it as a self gaining promotion. Even after a discussion with Marco Raaphorst (http://www.marcoraaphorst.nl/), a very active CC musician, about playing CC music in pubs and restaurants, we concluded that this must be possible with a nc-license, because a restaurant certainly is a commercial entity, but it is not selling music, it is at most profiting from the ambient of the music, which itself again is a kind of promotion (the owner of this pub/resto must somehow show the playlist as required by CC and as compensation), see eg. http://breipott.cc

    links to well-known netaudio/netlabel sites:
    Jamendo: http://www.jamendo.com/en/albums
    Phlow: http://phlow-magazine.com/
    Starfrosch: http://starfrosch.ch/
    Minimalnet: http://www.minimalnet.org/
    my website ;-): http://netlabelism.net

  6. Hi Embe! Thanks for contributing your perspective from the music-sharing side. I hadn’t thought about the netlabel angle.

    My understanding is that the netlabel world is slightly different from the situations I was talking about; netlabels make agreements with artists, or artists choose to post their music on netaudio sites, in order to get exposure/airtime/etc. The songs are usually NC licensed so that the musicians retain the ability to make money on commercial uses, but the netlabels themselves may be ad-supported or even downright profit-making, and that’s okay because the artist chose to enter into a relationship with the label under certain terms. If an ad-supported music website went around collecting NC-licensed music from all over the web without consulting musicians and making it available for streaming or downloading, I get the sense that it would cause an uproar. What do you think?

    As for pubs and restaurants playing CC-licensed music, that’s an interesting example. So far I haven’t found anything on the CC website that explicitly addresses the playing of NC-licensed works in bars and restaurants. The license does make clear that in jurisdictions where there are non-waivable compulsory license schemes the creator is entitled to collect royalties. I’d be curious to learn what CC’s official stance is on that kind of use.

  7. Hi Molly

    Using a photo on an ad-supported website = Commercial

    In the Netherlands, there is a pilot project involving Creative Commons and the music collecting society BUMA/STEMRA. Music authors who are members of the collecting society can get back the right to distribute their music under a CC non-commercial license. For the purpose of the pilot, commercial use includes:
    - any for-profit organisation using the work
    - distribution or presentation (offline or online) for any sort of compensation (including combination with ads, PR ativities etc.), i.e. if the aim is to generate income for a third party
    - radio transmission, use in restaurants, shops, at work etc.
    see http://creativecommons.nl/extra/bumafaq/#5 (in dutch)

  8. Hi Molly,

    I have a rather amateurish blog that reviews CC netlabel releases (and the occasional free release from bands looking to to drum up some publicity). My blog does not feature adverts and always links to the artists reviewed, encouraging visitors to make donations or to purchase CDs, etc. I do not receive any income at all from the blog.

    Two quick questions:

    1. I wish to install (the free) Yahoo Media Player so that visitors can hear embedded mp3s/audio files in my blog’s posts. Would this constitute advertsing for Yahoo and so breach the CC NC licence?

    2. An online magazine has asked me if I’d like my blog’s content to be circulated at their website, which is run by a private company that takes advertising. I probably won’t take up their offer but I’d like to know if circulating a CC blog’s CC content to a commercial enterprise would also contradict the NC agreement.

    Thank you.

  9. I think the gray area starts with the ‘primarily intended’ condition of the deed. When is something primarily intended? The restaurant using music in the background is primarily selling food and a service. Not the music directly or the possibility to listen to the music. What about a netlabel party? Can you charge an entrance fee, can you sell beverages? What if you just make sure you don’t make any profit (just covering the costs), then one could argue, that it is not directed towards commercial advantage.

  10. We really liked your blog and this info on the ad-supported model…we believe in it enough to have just pushed out BETA 2 of our site!

    Sincerely,
    The Songnumbers Team

  11. Pingback: Community Generated HowTos - Creative Commons

  12. Let’s assume this scenario:
    I have a personal blog that I maintain for self-promotion. I use lots nc images, videos & text that create lots&lots of traffic that make me famous. The web-site is not commercial but I make millions from book deals and speaking assignments. How about that? Is it non-commercial?

  13. So let’s get down to reality.
    1. Why don’t we ask to play it safe?
    2. If we make a mistake, honor the creator’s wishes. (They can always attain a different copyright to legalize their wishes if they have to.)
    3. If there is a miscommunication, support basic CC awareness and encourage them to label and clarify their work appropriately.

    Any thoughts?

    *I hate thinking about this because I’d really like to build and ad-supported database of resources, but there’s no way I could without the financial compensation. Asking every author of CCL work in the database is almost impossible. I don’t want to deprive the community, but I have to be realistic to myself. I don’t want to build the thing and have to take it down because of licencing. Gah! I could ask for donations and such, but again, there could be an extensive amount of work only to have the project collapse. Hm… Any thoughts?

  14. Molly,
    Thanks for your post on this important topic. I like @Cem Argun’s question because it relates to mine. Let’s take the case of a corporate blog that is NOT ad-supported but is used to help a company in its marketing efforts to establish itself as a leader in the industry. This would be considered commercial use, would it not? Any thoughts would be appreciated!

  15. Pingback: Can I use Images from Te Papa’s Collection Online? – The difference between Commercial and Non-Commercial Use « Te Papa’s Blog

  16. Hi Molly,,

    Another use case, is use of open course-ware such as MIT OCW on an ad supported, free to use educational forum. Will it constitute a commercial use?

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