Introduction

As many readers will know, when sourcing images for your blog or website, you can’t just do a Google images search, find an image you like, copy it and insert it in your post editor. Well, you can, physically, but legally this is a recipe for copyright infringement.

If you don’t have your own images, two common alternatives are to:

• purchase a licence to images from the likes of iStock, Shutterstock and Bigstock; or
• find and use images that have been either licensed under a Creative Commons licence or released into the public domain under CC0 (pronounced CC zero).

In this post, I’m going to focus on the latter: Creative Commons. Whilst some people are familiar with Creative Commons licensing, many people are not, particularly if they’ve had no need to use Creative Commons-licensed material in the past or to release material under a Creative Commons licence. For this reason, I’m going to:

• introduce Creative Commons and its licences; and
• explain how to comply with the attribution requirements that are common to all of the Creative Commons licences (but not CC0).

I’ll also explain what CC0 is all about and how it differs from the Creative Commons licences.

Creative Commons and its licences

For those not familiar with Creative Commons, here’s a short intro: Creative Commons is a non-profit organisation founded in the United States in 2001 by proponents of reduced legal restrictions on the sharing and use of copyright works. Headquartered in California, it also has affiliate organisations around the world. It aims to establish a middle way between full copyright control and the uncontrolled uses of intellectual property. To do so, it provides a range of copyright licences, freely available to the public, which allow those creating intellectual property to mark their work with the freedoms they want it to carry. As Creative Commons puts it on its website:

“Our tools give everyone … a simple, standardized way to keep their copyright while allowing certain uses of their work — a “some rights reserved” approach to copyright — which makes their creative, educational, and scientific content instantly more compatible with the full potential of the internet. The combination of our tools and our users is a vast and growing digital commons, a pool of content that can be copied, distributed, edited, remixed, and built upon, all within the boundaries of copyright law.”

There are six Creative Commons licences. The licences all confer a set of baseline rights on licensees (e.g., as to copying, use and distribution) and a set of baseline obligations and restrictions (e.g., licensees cannot sublicense the licensed work and they must not falsely attribute the work to someone else). All of the licences also contain one or more “licence elements”. There are four Creative Commons licence elements: Attribution, NonCommercial, NoDerivatives and ShareAlike. The Attribution element is common to all of the licences. The other three elements are used in different combinations across five out of the six licences. Here’s a handy video produced by the New Zealand Creative Commons affiliate (Creative Commons Aotearoa New Zealand) that explains the licences in more detail:

Complying with attribution requirements

As noted above, and as you’ll have heard in the video, the Attribution element (or requirement) is common to all of the licences.

Each of the Creative Commons licences comes in the form of both a “human readable summary” and the full legal terms. It is the full legal terms that are binding. The human readable summary for the Creative Commons Attribution 4.0 International licence describes the attribution requirement as follows:

“Attribution — You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.”

The legal text that the human summary is summarising, in the Creative Commons Attribution 4.0 International licence, is as follows:

“Section 3 – License Conditions.

Your exercise of the Licensed Rights is expressly made subject to the following conditions.

a. Attribution.

1. If You Share the Licensed Material (including in modified form), You must:

A. retain the following if it is supplied by the Licensor with the Licensed Material:

i. identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated);
ii. a copyright notice;
iii. a notice that refers to this Public License;
iv. a notice that refers to the disclaimer of warranties;
v. a URI or hyperlink to the Licensed Material to the extent reasonably practicable;

B. indicate if You modified the Licensed Material and retain an indication of any previous modifications; and

C. indicate the Licensed Material is licensed under this Public License, and include the text of, or the URI or hyperlink to, this Public License.

2. You may satisfy the conditions in Section 3(a)(1) in any reasonable manner based on the medium, means, and context in which You Share the Licensed Material. For example, it may be reasonable to satisfy the conditions by providing a URI or hyperlink to a resource that includes the required information.

3. If requested by the Licensor, You must remove any of the information required by Section 3(a)(1)(A) to the extent reasonably practicable.”

This might make you think attribution is complicated but, in reality, it’s really quite simple because most people who license photos under Creative Commons licences do not specify any particular form of attribution or any particular notices. Where that is the case, and where you’re simply copying and not adapting the photo, this kind of attribution will suffice (this one is an example of the statements I’ve used on WP and Legal Stuff for Creative Commons licensed images):

Note that I’ve provided links to both the source of the image on Flickr and to the URL for the Creative Commons licence. You don’t have to say “Thanks to [name of author/photographer]”. I just do that sometimes because I want to express my gratitude. You can drop the gratitude if you like and say something like this:

You might be wondering why the attribution statement above refers to what is now an old version of a Creative Commons licence (the Creative Commons Attribution-ShareAlike 2.0 Generic licence). The reason for this is that this is the licence version that Flickr has used and made available to its users (that is, users who want to apply a Creative Commons licence to their photos) for many years.

If an image were licensed under the newer Creative Commons 4.0 International licences, the attribution statement would be along these lines (in this example I’m using the Creative Commons Attribution 4.0 International license):

Sticking with the 4.0 International licences for now, you’ll have seen above that the Creative Commons Attribution 4.0 International licence states that you must “indicate if You modified the Licensed Material and retain an indication of any previous modifications”. A similar requirement (albeit not identical) exists in earlier versions of the licences. This means that if you do modify a photo that is licensed under a Creative Commons licence that allows modification (i.e., all variants of the licences except the NoDerivative forms), you need to indicate that you modified it. I’ve modified a Creative Commons licensed image for the featured image in this post (this particular image was licensed under a Japanese Creative Commons Attribution licence). At the bottom of this post, I’ve attributed the image as follows:

Does using a Creative Commons licensed image mean I’m bullet-proof from a copyright infringement claim?

The answer to this question is no because usually you’ll have no way of knowing whether the person who applied the licence to the image was the owner of the copyright in the image or was authorised by the true owner to release it under the selected Creative Commons licence. That said, in all the time I’ve been using Creative Commons licensed images, I’ve not had a single problem. This, I suspect, is also likely to be the case for the vast majority of people across the planet who use Creative Commons licensed images.

If someone were to complain that his or her image had been taken by another person and Creative Commons licensed without permission, the simplest solution would be to take the image off your site and replace it with a different image. Theoretically the true owner could pursue you for copyright infringement but, in the vast, vast majority of cases, that is highly unlikely.

Personally, I have no qualms at all about using Creative Commons licensed images, despite the theoretical risk I’ve just discussed. The only reservation I have relates to using Creative Commons licensed images of identifiable people. I’ll discuss that point below.

CC0

CC0 is not primarily a licence. It’s a tool that seeks to enable an owner of copyright in a work to waive the copyright in that work, thereby freeing it of copyright-related restrictions on re-use and releasing it into the public domain (at least from a copyright perspective). It also states that, if or to the extent that the waiver is legally ineffective in a given country, an extremely broad and obligation-free licence is granted instead; this is generally known as the ‘licence-fallback’. So the tool, in essence, is a waiver + licence fallback.

There is no attribution requirement for an image that is released under CC0, even if the waiver is ineffective and the licence fallback kicks in. You can, therefore, use a CC0’d image without having to make any attribution back to the owner/author/photographer.

The best source of high quality CC0’d images on the web (in my view anway) is Unsplash. Here’s an example:

Model releases

A potentially broad range of rights

You might think that a photographer who owns the copyright in an image (which they often will do under their contracts with customers) could do whatever he or she likes with it, that he or she could (for example) license it under any Creative Commons licence or release it under CC0. In many cases that will be true but the position needs to be qualified where an identifiable person appears in the photo, particularly if that person commissioned the photo or the photo is somehow private in nature. This is because, in such circumstances, the totality of rights involved may be greater than just copyright.

Depending on the circumstances and the country’s laws that apply, the person in the photo may have privacy rights, the right to be shown in the photo in a particular manner, contractual rights in his or contract with the photographer (if there is one), character merchandising rights, publicity rights and/or other rights to control one’s own image or personality (this last one being more common in civil law jurisdictions).

For example, photos taken in a person’s home or on some other private property may be private in nature and, in some countries, even photos taken of a person in a public place have the potential to be private in nature if, for example, the photos were obviously private or their publication could be offensive in some other way. And particular care needs to be taken with photographs of children (on this point see the United Kingdom Court of Appeal’s decision in a case involving the taking of JK Rowling’s child when the family was out for a walk in the street: Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446). It is important to emphasise too that the relevant rights and the circumstances in which consent is required differ from jurisdiction to jurisdiction.

The kinds of rights referred to above will, when they exist, often limit the circumstances in which a photo of a person can be used, even where in a given country the photographer is the copyright owner.

Model releases

This is the main reason for so-called “model releases”, or “image releases” as they are also known. They serve two main purposes: obtaining the relevant permissions from the subject of the photo and protecting the photographer (and potentially other users depending on the breadth of the release) from liability in relation to any use that falls within the scope of the release. In essence, a model release allows certain specified uses and releases the authorised person(s) from liability in relation to those uses. You can find some examples of model releases here and here.

If you’re not sure whether a Creative Commons licensed or CC0’d photo of an identifiable person has been the subject of an appropriately wide model/image release, you may want to be careful about using the image on your site. Either that or, if the person in the photo were to complain, take the photo down immediately.

Questions

If you have any questions on this post, please feel free to ask them in the comments below. I’ll do my best to answer. Have a great day!

(Featured image: PAOF by shichigoro, licensed under a Creative Commons Attribution 2.1 Japan licence. I have adapted the image by removing “global summit 2011” from beneath the “creative commons” header.)