Worlds collide: Copyright, CC, and wedding photos

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Offbeat Bride book jacketIn general, I treat this blog as a professional outlet and try to keep my personal life out of it, but I had little online colliding of worlds recently and I decided it’s worth sharing here as well, with apologies for the blurring lines. A couple of weeks ago I wrote about Creative Commons licenses and wedding photography for the Offbeat Bride Tribe on Ning (a private, member only space), and it got picked up by the Offbeat Bride blog. I tweeted about it, then Creative Commons tweeted about it, and I didn’t really think about how online your personal you and your professional you tend to bleed together, especially if you only use one Twitter account for everything. So now the news is out: I’m getting married. To a fellow copyright nerd. And I negotiated with our photographer to attach CC licenses to our wedding pictures. The post I wrote about the experience for Offbeat Bride is below – please keep in mind that this is written for an audience that mostly never thinks about copyright, in a context that is generally very informal. Also, I should warn you, it’s pretty long.

If you’re interested in this kind of thing, it’s worth heading over to the post on the Offbeat Bride site because the comments have been lively. Lots of photographers weighing in, which shouldn’t have surprised me.

Copyright, Creative Commons, and your wedding photos

I’m really excited by the amazing success we had negotiating with our wedding photographer around copyright, and I wanted to share what we did with the Offbeat Bride community.

Disclaimer: I am not a lawyer, I’m a librarian with a background in publishing who frequently does outreach and education about copyright. None of this is legal advice, etc.

Okay. So before I explain what our photographer is doing for us, you need a very very abbreviated introduction to copyright. (I’m sorry, I’m a librarian, I have to teach you things, I can’t help myself).

1) The purpose of copyright law is to promote the progress of science and art. Hardly anyone knows that anymore. So many people think it’s about generating profit for the music industry and giving individual artists total control over their work, but that’s just not true. Once upon a time, copyright law was balanced between the needs of creators and the needs of the public. Things have gotten really unbalanced over the last 40 years, but the goal of serving the public and promoting progress is still in there.

2) Copyright protects creative works that are fixed in a tangible medium of expression. This means that in order for something to be protected by copyright, it has to be recorded some way, on paper or on a hard drive some other physical thing. There are several classes of creative work that qualify for copyright protection: literary works, musical works, dramatic works, choreographic works, pictorial, graphics, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works.

3) Copyright does not protect ideas or facts. Those are free for anyone to use, even if it makes them look like they’re biting someone else’s style. A work has to be at least a little bit creative to qualify for copyright protection. Something that is purely factual, like a phone book, does not have enough creativity to be copyrightable even if it takes a lot of effort and hard work to make it.

4) Copyright attaches to a work automatically the moment it is recorded. There is no need to register the copyright, or to put a little (c) on it, or even claim it. If a work is relatively new (created in the last 50 years or so) creative, and recorded in some way, it’s almost definitely copyrighted. Copyright also lasts a really long time (currently, life of the creator plus 70 years after the creator dies). This means that most of what you find online is under copyright, even if there is no copyright symbol and no attribution and no source listed.

5) Copyright comes with a set of exclusive rights. These are things the copyright holder can do with the work that other people mostly cannot do (there are some important exceptions, but it would take way too much space for me to go into them here). The rights that come with copyright are: 1) The right to make copies. 2) The right to distribute copies. 3) The right to make derivative works. 4) The right to perform or display the work. The copyright holder may keep these rights to herself, or she may give some or all of them away, usually with a contract or a license.

So what does any of this have to do with your wedding photos? Everything. The way the default rules of copyright ownership work, the photographer you hire to shoot your wedding holds the copyrights in your wedding photos. She is free to sell them, publish them, Photoshop them, and share them. You are not. I hear all the time from people who believe that because they are the subjects of the photos, or because they are the ones who hired the photographer, then they are the ones who hold the copyright in the photos. In fact, it’s just the opposite. Those exclusive rights are hers, not yours.

But that’s just the default. You can change all that with the contract you sign when you hire your photographer. Most wedding photographers these days do retain the copyrights in the photos they take of your wedding, but they may give you a license to make personal, non-commercial uses of your photos. This is especially common when photographers offer a CD or DVD containing the high-res files of all your pictures. You usually have to pay extra, but a license like this means you can print copies yourself, post your pictures on Facebook, and send them to your friends, without asking for permission and without violating your photographer’s copyright. These are all good rights to have, and I highly recommend reading your contract carefully to see if you get them, and if you don’t, to ask.

For me and my boyfriend, a personal license was absolutely the bare minimum of what we would accept from our photographer. We’re both copyright nerds, and we knew we needed a license to use our own wedding pictures. But what we really wanted – and ended up getting – was more. A couple of weeks ago in the post about the XKCD save the dates, Ariel alluded to something called Creative Commons. Creative Commons is a system that allows creators to attach a license to their work that gives certain permissions to the whole world. There are several Creative Commons licenses to choose from. All the licenses require that whoever uses the work must attribute the creator and provide a link back to the original. Other options permit only non-commercial uses, forbid derivative works, or require people who build on a work to share the new work under the same license as the original. Many photographers, artists, musicians, and authors – including the ones who make a living from their art – now use Creative Commons licenses because they recognize that it is good for them. They always get credit as the creator, and it’s easier for people to discover and fall in love with their work when fans are free to copy and share it. I love love love Creative Commons because it has made possible a huge pool of new creative material that we are free to use and build on without worrying about copyright infringement. This is especially exciting to librarians and educators like me and my boyfriend, but anyone who loves remixes or mashups or funny cat pictures on the internet should appreciate how much better life is when people feel free to build on the creative work of others.

So back to wedding photos. Instead of a license that would just allow me and my boyfriend to use our wedding pics, we wanted a license that would allow anyone in the world to use our photos. We wanted a Creative Commons license. I really didn’t think we’d be able to convince a professional photographer to license our photos this way, but we did, and it wasn’t even that hard. First, we found an amazing photographer who already offers a personal copyright license along with the CD of high-res files. This way, we already knew we had someone who didn’t feel the need to retain complete control over the images. Once we’d gotten past the initial email exchange figuring out whether she was available, telling her how much we loved her work, describing our offbeat wedding plans, etc., I explained in an email a little bit about Creative Commons and why it was important to us, and I provided a couple of links to information where she could learn more. I was afraid we’d lose her right there, but to my surprise, she was just excited to be working with people who actually understood copyright law, and was totally open to hearing more about CC. Then we set up a phone call where we could talk about all the usual stuff you talk about with a photographer, but in addition we discussed the CC license. I explained again why it was important to us, and talked about ways in which it could be good for her as well. We agreed that it would have to be a non-commercial license – anyone who wanted to make a commercial use of a photo, like for advertising, would have to contact her for permission. Her biggest concern was that if the license was attached to high-resolution versions of the photos it would be too easy for people to make infringing uses, especially in print. Ultimately, we compromised with an agreement that we would be allowed to attach a Creative Commons Attribution-Noncommercial license only to low-res versions of the files. This is enough to allow for web-based reuses of our photos, but was limited enough that our photographer was comfortable giving it a try. We edited the language in her standard photographer contract to reflect the new license, and that was it.

Contracts can be intimidating and full of legalese, but it’s really worth taking the time to understand what is in your agreement with your photographer, and to negotiate for more rights if they’re not in the standard agreement. I was surprised by how much we were able to get just by asking.

If you want a concise overview of what Creative Commons is and why it is valuable, I highly recommend this video.

Creative Commons Annual Campaign and CC Learn Productions

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Here’s a post-Thanksgiving CC two-fer to kick off the holiday season…

1) Every year, Creative Commons holds a big fundraising campaign, and they ask a few members of the CC community to write letters explaining what makes CC so important and why they support it. This year I wrote one of those letters focusing on CC Learn and the tremendous value of open educational resources. This feels a bit like self promotion, but it’s me promoting myself promoting CC, so I’m going to go ahead and do it anyway: Check it out, grow the Commons.

2) I just found out that several months ago CC Learn launched a series of reports, guides and documentation to help support people who are running and building open education initiatives. They’re short and clear and useful; I’m particularly fond of Why CC BY? (pdf). Now the folks at CC Learn are developing a series of advanced topics that go into more detail on particularly complicated subjects. The first one is on trademark, a topic almost as confusing as copyright for most humans, and in particular on the ways that CC and trademark are not necessarily incompatible. It clarified some things for me and I recommend checking it out if you have any concerns at all about branding and the use of CC licenses.

La la, CC is awesome, happy December!

Defining Noncommercial Use Study published by CC

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A year in the making, Creative Commons just released the results of their investigation into how users and producers of content define noncommercial use. Defining “Noncommercial”: A Study of How the Online Population Understands “Noncommercial Use” details the results of research gathered through online surveys of content creators and users in the U.S., open access polls of global “Creative Commons Friends and Family,” interviews with thought leaders, and focus groups with participants from around the world who create and use a wide variety of online content and media.

The report is long and detailed, with a lot of interesting information about how creators and users approach the question of what is and isn’t noncommercial. While the research did identify a spectrum of opinion about NC that suggests that not everyone is on the same page, in general the results seemed to be that the existing definition of NC is pretty good, and the range of understanding may not be a bad thing. From CC’s blog post announcing the report.

Overall, our NC licenses appear to be working rather well — they are our most popular licenses and we are not aware of a large number of disputes between licensors and licensees over the meaning of the term. The study hints at some of the potential reasons for this state of affairs, including that users are in some cases more conservative in their interpretation of what is noncommercial than are creators and that in some cases creators who earn more money from their work (i.e., have more reason to dispute questionable uses) are more liberal in their interpretation of what is noncommercial than are those who earn less.

As an advocate of the use of NC licenses by scholars and others, I’m glad to know that they’re not as broken as we feared they might be. There are lots more findings in the report that may interest you; it’s worth perusing the executive summary at the very least.

Personal update: New job, same library

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I’ve been terribly slow in updating here recently (Blogs are dead! Long live Twitter!), but I wanted to announce that I started a new job at the University of Michigan Library in May, and am no longer the Library’s copyright specialist. My new title is Special Assistant to the Dean of Libraries. It’s a fancy title, eh? I’m still figuring it out what it means, but so far it includes a whole range of things: I work directly with Dean Paul Courant on assorted projects, especially research and writing relating to scholarly publishing; I attend administrative meetings; I serve as a liaison between the Library’s administration and the rest of the Library; I manage the annual budget writing process; I write first drafts of all kinds of documents; I attend more meetings. The easiest way I can explain it is that this job is like being an administrator-in-training. I get to observe library administrators in action, I take on responsibility for assorted projects related to administration, and over time I’ll learn how to do what administrators do. I feel very lucky to be doing this job at this library, and it’s been pretty exciting so far.

So what does this mean for this blog? I hope to get back to it and post a bit more regularly. I still plan to focus on copyright and scholarly publishing because those topics remain important and interesting to me, but I may also write about other issues in academic libraries as my new role develops and I start branching out into other areas. Outside of the U-M Library my work in the area of scholarly communications continues: I’m still a member of ALA’s Copyright Advisory Network, and this summer I’m also an instructor for ACRL’s Scholarly Communications 101 Roadshow. Occasionally people who find me through this blog send me questions or invite me to speak about Creative Commons or copyright instruction, and I still welcome those questions and invitations and will do my best to answer them promptly and accept as often as I can.

Thank you to everyone who has been reading this over the last year and a half for your insightful comments and questions. I hope this new era in my professional life provides fodder for more interesting discussions here and elsewhere.

Lessons from Open Access Week

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As most of you already know, last week was Open Access Week at the University of Michigan Library. It was a great series of events, and I’m very happy with how it all came together. Audio recordings of some of the events will be available soon for those who are interested, and I’ll post links when they are. Private Drive by Ron Layters
Private Drive by Ron Layters, CC-BY-NC-SA

Now that I’ve had a little time to catch my breath and look back, I’m realizing that OA Week gave me a much-needed opportunity to refine and reflect on my thinking about open access. Over the course of the week, I learned a few valuable lessons, and even changed my mind about a couple of things. Before I forget it all, I wanted to share them here.

Lesson #1: A formal definition of open access should include re-use rights The Budapest, Bethesda, and Berlin definitions of open access all require not just free online access to the work for all users with an internet connection, but also a license that permits copying and redistribution of the work. Prior to Open Access Week, I believed that a definition of open access that required usage rights was sacrificing the good for the sake of the perfect, and that therefore all three of these founding documents were deeply flawed. In an environment where scholarly authors must often haggle mightily just to keep the right to deposit their articles in an institutional repository, such a requirement was asking too much. We shouldn’t disparage those who do the valuable and important work of promoting subject and institutional repositories just because in an ideal world we’d have something even better.

Discussions at the Open Access and the Academy panel have convinced me that the difference between a work that is freely available and a work that is freely reusable is tremendous, and that true openness does require the possibility of future adaptation and use. We can draw a distinction between free access and Open Access without demeaning those who have only been able to achieve free access. In very many situations, free access is enough.

There is also a broader Open with a capital O movement – Open Source, Open Education, Open Content – and those opens all require Open Licenses. As a child of the branded generation, I think it makes sense for all those Open movements to have a recognizable theme, and since Open Source, Open Education, and Open Content all call for Open Licenses, so should Open Access. (The question of which licenses constitute Open Licenses is another matter, one on which I tend to disagree with the majority.)

Lesson #2: Undergraduates have an important role to play in advocating for Open Access This is the second thing about which my mind has been changed. In the past, I have argued that Open Access outreach programs targeting students are misguided, because undergrads have nothing to do with any part of the publishing process. Most of them don’t write articles for academic journals, and they don’t publish academic journals. The points in the system where change could happen involved the author and the journal, and those were the two audiences to which we should be directing our message.

While nobody spoke directly about undergraduate engagement during OA Week, the week made me think about it because it reminded me that it’s damned hard to get faculty into a room they’re not contractually obligated to be in. Despite a determined marketing push, faculty did not turn out to our events in large numbers. The same is true in my day to day work. Most of the time, I only hear from faculty seeking copyright advice after they have a problem. Until they have a problem, author rights and open access are simply not on their radar. I can send postcards and emails and speak at department meetings until I’m blue in the face, but it’s going to take an outside force to convince busy academics that this is something they should be paying attention to. As evidenced by the faculties at Harvard, MIT, and elsewhere, the winds are starting to shift, but progress is still very slow.

So now imagine what a little undergraduate activism can do. The high cost of purchasing scholarly journals contributes to the rising cost of education, and the rising cost of education is a hot topic in these dire economic times. If we can get students riled up about open access – and that’s still a big if – they might have more luck influencing the behavior of their professors than librarians have. While before I thought that targeting students for open access outreach was a waste of time, now I believe it’s worth a shot. Some infrastructure for it already exists, and in the coming months I plan to look into how I can promote student participation here at Michigan.

Lesson #3: Never lose sight of the Great Conversation Jean-Claude Guédon, one of the panelists on Tuesday, spoke of the importance of open access in facilitating what he called “The Great Conversation.” The Great Conversation is the purpose of all scholarship. It signifies engagement with knowledge, ideas, and a worldwide community of scholars. To frame the issue this way, open access is not about money or fairness or social justice, it’s about something more romantic. Perhaps the way to win over the hearts and minds of faculty is to put open access in loftier, more idealistic terms. People who do not have access to scholarly output cannot participate in the Great Conversation, and neither can people whose works are not widely accessible. And who can resist the seduction of a Great Conversation, a free-flowing, boundary-crossing exchange of opinion and understanding?

We in libraries often get bogged down in the numbers, the line graphs that show the skyrocketing prices of journals relative to inflation, the mundanities of our stagnant or shrinking budgets. We believe these fiscal arguments should resonate with faculty, and sometimes they do, but there is nothing terribly inspiring about a line graph. When we talk about the importance of Open Access, we should remember to speak not only about what is broken right now, but also the tantalizing possibilities for the Great Conversation that lies ahead.