Worlds collide: Copyright, CC, and wedding photos

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

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

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.

SXSW Day 4: Thick as Thieves: When Your Fans Break the Law

This was supposed to be a panel about piracy, and how to handle it when fans stop paying for your stuff and start filesharing. Instead, the panelists talked a lot about copyright and fair use, and how to draw the line when fans make potentially transformative, possibly infringing new works. It probably had to go that way, given that there were two copyright lawyers on the panel: Jason Shultz from the Electronic Frontier Foundation, and Dean Marks, the Senior Vice President for Intellectual Property at Warner Brothers.

I was surprised to learn that Warner Brothers has (or claims to have) a very liberal policy when it comes to no-budget and student filmmakers requesting licenses to use clips; while WB can’t legally grant free permissions because of agreements with unions and guilds, they do issue “no objection” letters guaranteeing that the student can use the clip without fear of a lawsuit. I can’t wait to tell my Communications and Art & Design faculty.

There were also two filmmakers on the panel, and I was particularly charmed by M dot Strange, an independent, pro-piracy animator. His philosophy is, “You should be happy if anybody wants to watch your movie in any way, and you should try to figure out how to make money from it after.” He suggests making the DVD value-added – his offers 8 alternate soundtracks to the film, along with very cool cover art – in order to encourage your fans to buy your movie after they’ve already watched it for free online. He also argues that “If you don’t have a P&A [Prints and Advertising] budget, piracy is your promotion.” The torrent seeders essentially worked on dot Strange’s behalf, not only providing free distribution, but also promoting the film on their websites and creating subtitled versions in several languages, instantly expanding his potential audience. He’s my new poster child for the power of unauthorized distribution.