IP: What you need to know about Creative Commons

Don’t assume that all content marked licensed under CC is free

Any recent law school graduate or intellectual property attorney has likely come across Creative Commons, the California-based non-profit founded by Lawrence Lessig, Hal Abelson and Eric Eldred. In-house attorneys working in the media industry might blame it for the need to remind their production people not to use everything found on the Internet.

Background

If you are unfamiliar with Creative Commons, it might first be worth knowing what it is not. It is not anti-intellectual property rights. You may have heard it mentioned in the same breath as an assertion that intellectual property rights are strangling creativity and productivity, but the organization depends on intellectual property rights to be effective.  It owns several trademark registrations.  It retains some rights to the content on its website. According to its website, it is working to “create a balance inside the traditional ‘all rights reserved’ setting that copyright law creates.”

Using Creative Commons’ Licenses

Founded in 2001, Creative Commons published its first set of pre-packaged copyright licenses in 2002, which allow authors to publish works that can be reused without further permission, as long as certain conditions are met. These licenses contain three layers, the first being an actual license. Most people don’t actually read this portion, however, because each license also contains a second layer–dubbed the “human readable” layer—that outlines the license’s basic bullet points in an easily digestible format. The final layer is computer code that, when used properly, allows works solicensed to be searchable online in certain contexts.

There are currently six of these pre-packaged licenses available, each authorizing various levels of use of the underlying work. The least restrictive allows third parties to view the work, distribute it, and create derivative works using it as long as correct attribution is given to the original creator. Somewhere in the middle is the license used by Wikipedia, which is essentially the same as the above-described license with the restriction that any derivative works created using the underlying work must be licensed under identical terms. The most restrictive license allows downloading and distribution of the work, but does not authorize anyone to change the work or use it commercially.

Several high-profile bands and artists have recently published albums and other original works using licenses from Creative Commons. Flickr allows users to search for a work filtered by its type of license. These and other well-publicized incidents have ensured that many creative types on the production side of any content industry presume that anything they find online branded with a CC—one of the trademarks owned by Creative Commons—is available for use subject to a few restrictions.

The problem is that, by necessity, attorneys must be more risk averse than creatives working in the content industry. It is often difficult—if not impossible—to verify that the person who uploaded a photo or song your client wants to use actually owns any rights to it. For this reason, there is risk involved with using many works licensed in this way, especially if your client or employer is a large media company with deep pockets.

On the flipside, while Creative Commons has tried to provide layman’s terms for each of the levels of license, these documents still have legal ramifications that are probably not fully appreciated by those new to licensing. Similar to companies offering canned legal documents for do-it-yourself, we expect that unfortunate stories of individual authors selecting the wrong license or providing inappropriate terms are going to become commonplace.

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Douglas R. Wolf

Douglas R. Wolf is a Shareholder in  Wolf Greenfield's Trademark Group.

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Associate

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Anderson Duff

Anderson Duff is an associate in Wolf Greenfield's Trademark and Copyright Group. He specializes in prosecution and litigation, including proceedings before the Trademark Trial and...

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