I just got a bill for a Creative Commons photo we used. What gives?

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Every week, Student Press Law Center attorneys answer a frequently asked question about student media law in “Legal Question of the Week.”

So I just got off the phone with yet another student media operation that has received a copyright demand letter from a company that represents photographers. We’ve before talked about the rise of so-called “copyright trolls” who use new technology to search the Internet for unauthorized uses. And we’ve got information on our website that explains the situation and possible defenses on our website.

In this case, however, there is a bit of a twist. And it presents a significant threat to the livelihood of all media.

The company says the student website unlawfully posted a photo from a popular Creative Commons web site and now owes the photographer several thousand dollars. Creative Commons is an alternative to the normal “All Rights Reserved” model of traditional copyright law and was built, in large part, to allow artists and users more flexibility in using creative works. 

Popular Creative Commons sites such as Wikimedia, Flickr, Pixabay include hundreds of thousands of photos and images that you can use for free if — and this is the big big IF — if you comply with the photo’s Creative Commons license, which usually is listed alongside the photo. Sometimes that just means you have to include the photographer’s name. Sometimes it means you can’t significantly alter the original image or can’t make a profit off of it. Whatever it says, if you want to use a Creative Commons photo you must take the time to read and comply with the license requirements or risk being sued for copyright infringement. Unfortunately, some photographers and companies are now intentionally taking advantage by including very specific or complex licensing terms that they know most – or at least many — users probably won’t comply with. Let’s call it what is: a trap. And once a user falls into their trap, a demand letter soon follows. 

In this case, the photo was that of a generic medical syringe. Like pretty much every news organization on the planet, this student media group was writing about COVID19 and they wanted a basic, no-frills image to illustrate their article. They found one on a popular, legitimate CC site that only required that the image be properly attributed. So they accurately included the photographer’s name in the caption. Unfortunately, they didn’t read the license requirements further, which required that users also link to a specific page on the photographer’s website and include licensing terms in the photo’s file credits, which they didn’t do. So they were out of compliance with the Creative Commons license and now the photographer is demanding over $5,000 for his simple, generic photo.

The thing is these “traps” are usually legal. While there are a number of things to be done before these students write a check, the basic problem remains:  they used a Creative Commons image and did not fully comply with its license. So please, please, please alert your staff. Read the fine print. The technology has changed. You cannot hide behind sloppy practices and hope that you won’t be caught. Because, eventually you will be.

Legal questions should be directed toward SPLC’s legal hotline. Legal Questions of the Week are selected based on trends in the legal hotline. The legal hotline is confidential and no identifying information will be used in the Legal Question of the Week segment.