Creative Commons Lawyer – Is it a Contract or is it a License?  I say its a license (unless there is an offer inviting consideration).

VIDEO:  Click on the picture above to watch a basic beginner primer on Creative Commons Licensing.  Make sure to SUBSCRIBE to our legal channel which now has over 25,500 subscribers.   

2019 Update: If you are being pursued for a breach of a Creative Commons license call us to discuss.  There are photographers out there who may put their photos online under the terms of a deceptive Creative Commons license then come sue your company for breach of contract or for willful copyright infringement.

Introduction

This is a legal issue that may come up from time to time with a photo troll, software troll or movie troll (or some other troll, there are many out there).  The issue deals with using some type of digital content under a “Creative Commons” license.  We have talked about the various types of licenses in our video (see above for a quick video overview).  But what happens when an author or artist allows you to use a piece of content in a particular manner (ex. its okay to use my photos on your website with a creative commons attribution and only if not using it commercially).  When a webmaster exceeds the scope of this “license” or otherwise uses the material in a commercial format let's say, what happens?  Is this a breach of contract (where “benefit of the bargain” is the typical remedy) or is it a willful copyright violation (where 30k-150k plus attorney fees could be awarded).  As you can see, these are two very different types of damages awards.  One can force you into a “bet the farm” case and the other could trigger a small damages award.  This blog talks about a few of the key cases in this area.

Creative Commons Caselaw

Here is some of the key caselaw in this cutting edge area of the law.

GateHouse Media, Inc. v. That's Great News, LLC, No. 10-50164 (N.D. Ill. filed 6/30/2010)

This case involves GateHouse Media suing what it believed was a potential rival.  Here are some allegations made in the complaint:

“GateHouse is one of the nation's leading publishers of daily and weekly community newspapers. GateHouse publishes local newspapers and their corresponding online editions in numerous markets across the country including, inter alia, such publications as the Rockford Register Star, distributed in Rockford, Illinois and vicinity and available online at www.rrstar.com. GateHouse's community newspaper publications and related websites reach almost 10 million readers each week.

GateHouse is a well-respected source of copyrighted news reports, features and other information in the communities it serves.

GateHouse has invested and continues to invest substantial resources, including time, effort, talent and creativity, in gathering and reporting local news of interest to readers.

GateHouse enjoys a hard-earned reputation across the United States as a valuable source of news and information.

Paid subscribers to GateHouse's publications are entitled to receive hard copy print versions of GateHouse's publications. The electronic versions are also subscription-based, and are made available only pursuant to a terms of use agreement which prohibits copying, reproduction, distribution or dissemination of the publications for “commercial purposes” (“Creative Commons License”). 

TGN operates an interactive web site at the internet address www.thatsgreatnews.com through which TGN solicits and accepts from persons located throughout the United States, including in Illinois, orders for plaques, reprints and other of its products and services. On occasion, the TGN web site has prominently featured unauthorized reproductions of GateHouse's copyrighted content, including both copyrighted text and photographs. TGN has featured on its web site, as an example of the reprints it sells, a copy of GateHouse's copyrighted content along with a price list for ordering reprints. At times, the home page of TGN's web site displayed copies of content from GateHouse's publications.

This is an action for copyright infringement under the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq., trademark infringement, unfair competition and false advertising under the Lanham Act, 15 U.S.C. §§ 1114 and 1125, and unfair competition, trademark infringement, and breach of contract under state law. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), § 1338 (patents, copyrights, trademarks), § 1367 (supplemental jurisdiction) and § 2201 (declaratory judgments).”

So the question was whether or not the terms of the creative commons license was breached by commercial use.  Ultimately the case was dismissed before decision rendered.

Quick Legal Overview

Breach of Conditions = license (copyright infringement).  A condition is a term like “as long as” or “provided that.”  If a Creative Commons condition is breached, likely this will be viewed as an infringement of the copyright.

Breach of covenants = breach of contract.  A contract is a promise or set of promises the law will enforce with a remedy for breach.  A covenant is basically a promise.  But with CC there is no bargained for exchange or legal detriment.  Thus, to me, no contract if former.  There is only the granting of a license (certain rights you have which the licensor will allow you to do, without suing you).  But if you agree to covenants and breach them, the remedy would be the “benefit of the bargain” under contract law.

Philpot v. Music Times LLC, 2017 WL 1906902 District Court for the Southern District of New York 2017

Here is a case where a photographer made available photos under the Creative Commons Attribution-Share Alike License. According to Creative Commons:

“This license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms.” 

It has been referred to as “copyleft” and is similar to open-source software.  In fact, Wikipedia uses this on many licenses.

The Defendant was Music Times, LLC and they reproduced/distributed 2 photos in a manner that Plaintiff alleged violated the terms of the license.  A default was entered when the defendant did not answer and the issue was what the appropriate measure of damages was.  Here was some sample language from the memorandum and order:

“The complaint alleges that Music Times reproduced and distributed two Creative Commons licensed photographs without complying with the licenses and without any other permission or authorization. The complaint alleges violations of the Copyright Act and Copyright Revisions Act, 17 U.S.C. §§ 101 et seq. (the “Copyright Act”), and the Digital Millennium Copyright Act at 17 U.S.C. § 103 (the “DMCA”).”

“DENISE COTE, District Judge: On July 5, 2016, the Court entered default against defendant Music Times LLC d/b/a musictimes.com (“Music Times”), and referred the matter to Magistrate Judge Debra Freeman for an inquest and Report and Recommendation as to damages. On March 29, 2017, Judge Freeman issued her Report and Recommendation. Neither party submitted objections. For the following reasons, the Report's recommendation is adopted and a default judgment is entered against Music Times in the amount of $5,000 plus $400 in costs.”

“The Copyright Act provides statutory damages “in a sum of not less than $750 or more than $30,000 as the court considers just” for infringement with respect to any one work. 18 U.S.C. § 504(c)(1). The plaintiff offered no evidence regarding actual damages or the market value of the copyrighted photographs. The Report reasonably found that “taking into account that Plaintiff has not shown any loss of licensing fees and that the alleged infringing conduct involved only two instances of unauthorized reproduction -– but that the Defendant's violation of Plaintiff's rights must be accepted as deliberate and purposeful,” a statutory damages award of $5,000 is sufficient to compensate the plaintiff and to punish the defendant for its willful infringement. The Report recommends that the Court exercise its discretion to deny attorneys' fees to the plaintiff because the Proposed Findings contains no request for attorneys' fees or costs, was not accompanied by supporting documentation to substantiate a claim for such an award, and the role of counsel appeared limited from the record. The Report recommends the plaintiff be awarded costs for the filing fee of $400 listed on the Court's docket.”

Graham v. James

This was a case from the Second Circuit.  The case dealt with the removal of a copyright notice (essentially akin to a failure to provide the proper attribution) but in this case the court held it was a breach of covenant (promise), which resulted in a contract breach, and not a failure to follow conditions (which would be a copyright infringement violation).

Jacobsen v. Katzer

This was a case where the courts found there to be a “license” at issue (and not a contract).  In reaching its decision, the Court noted:

"In this case, a user who downloads the JMRI copyrighted materials is authorized to make modifications and to distribute the materials “provided that” the user follows the restrictive terms of the Artistic License.   A copyright holder can grant the right to make certain modifications, yet retain his right to prevent other modifications.   Indeed, such a goal is exactly the purpose of adding conditions to a license grant.5  The Artistic License, like many other common copyright licenses, requires that any copies that are distributed contain the copyright notices and the COPYING file.   See, e.g., 3-10 Nimmer on Copyright § 10.15 (“An express (or possibly an implied) condition that a licensee must affix a proper copyright notice to all copies of the work that he causes to be published will render a publication devoid of such notice without authority from the licensor and therefore, an infringing act.”)"

Conclusion

Whether a failure to follow a Creative Commons License is a breach of contract or a copyright infringement depends on the specific facts of the case.  A copyright law firm can help you examine the facts and help represent you, whether you are a Plaintiff or a Defendant in a legal action.  Contact us to discuss at (877) 276-5084.

We can also help with pre-publication reviews of news articles, blogs, podcasts (music samples) marketing and advertising collateral and other works that use videos, photos, film, images, illustrations or other digital content.  Fair Use opinion letters are also available.