Just because you used an image that’s available under a Creative Commons license doesn’t mean you won’t get sued. A recent case involving Kappa Map Group illustrates some of the potential challenges.
The case is Drauglis v. Kappa Map Grp., LLC. In 2012, Kappa published an atlas. The cover featured a photo that was taken from Flickr. Art Drauglis was the photographer.
When Drauglis posted the image to Flickr, he chose to make it available for others to use under a Creative Commons Attribution-Share Alike License.
A Brief Creative Commons Refresher
From the “About” page on their website, creativecommons.org:
Creative Commons is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.
Our free, easy-to-use copyright licenses provide a simple, standardized way to give the public permission to share and use your creative work — on conditions of your choice. CC licenses let you easily change your copyright terms from the default of “all rights reserved” to “some rights reserved.”
The photographer, Drauglis, sued Kappa on the grounds that their use of the photo was outside the scope of this particular Creative Commons license. Drauglis essentially made 3 claims:
- The atlas was a “derivative work” of the original photo, and therefore, per the Creative Commons Attribution-Share Alike License, Kappa had to make the atlas freely available, instead of putting it up for sale.
- Kappa should have included the text of the Creative Commons Attribution-Share Alike License or a link to the text.
- Kappa did not provide proper attribution.
Reviewing the Plaintiff’s Claims
To cover Claim #1, it’s important to clarify what a derivative work is. Under U.S. copyright law, a derivative work is defined as follows:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
The court found that “it is clear that the entire picture is reproduced with no major deletions or alterations,” and, therefore, “defendant did not create a derivative work when it incorporated the Photograph into the cover of the Atlas.”
So, just because you re-use a copyrighted work in your own work, that doesn’t automatically make it a “derivative work.”
Because it wasn’t a derivative work, the restriction against selling the atlas didn’t apply, so Claim #1 failed.
Regarding Claim #2, that the atlas should have included a copy of the Creative Commons license or a link to the text of the license, the court found that, because Kappa included the name of the Creative Commons license on the back cover of the atlas, the license’s requirements were satisfied.
Finally, we come to Claim #3, that proper attribution was not included. This had to do with the location and font size of the title of the photo and the photographer’s name. Again, the court found against the plaintiff, stating that “defendant provided plaintiff with authorship credit in a manner comparable to and as prominent as the attributions on each of the individual maps when it attributed the Photograph to plaintiff on the back cover…” and therefore was in compliance with the Creative Commons license requirements.
The photographer lost on all three claims, so Kappa won, right? Technically, yes. But they went to great expense to defend themselves in a lawsuit concerning their use of a photograph that they had the right to freely use.
Kappa was not granted an award of attorney’s fees and costs. So they ended up fighting this on their own dime (or, at least, on the dime of their insurance company; that info isn’t available.)
This is a cautionary tale. Be very careful even when using a photo that’s available under Creative Commons. Read the fine print. And always be prepared for something to go wrong. Obtaining insurance to provide for your defense in the event of a lawsuit of this type may be a prudent way to protect your company against a ruinous legal claim.