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Flickr, Creative Commons, Museums and Copyright
I'm posting this because this has been an issue I've been attempting to resolve for a long time. For example, I wrote a very long post in May in which I attempted to figure out the answer, and ended up shrugging with a "still don't know the answer."
The issue, in brief is this: I go to museums and take pictures. Typically, these museums have simple photography policies that state that photography is permitted without the use of a tripod and for personal use only. I then take these pictures, upload them to Flickr, label them, and give them the Creative Commons Share-and-Share-Alike license, which states that others can use them and even modify them, as long as they credit me and, ideally, inform me. What I've pondered - and, in truth, really worried about - for over a year now was if it was legal, under copyright law, for me to do this - especially the Creative Commons part.
While I was away, I got the following e-mail (I've removed the contact info and name of the person who contacted me.)
"Hello, i found your image of the Styracosaurus Albertensis on wikipedia and i'd like to use it (well part of it not the whole front of skull) in a children's educational book on dinosaurs. We want to show a close up of part of the horn and part of the crest."
I've gotten a few e-mails like this before - two or three from folks doing scientific journal publications, a couple others - and my answer is always basically the same:
"Thanks for getting in touch with me. I'm afraid that it's not in my power to grant this permission, as the photos I take at museums cannot be reproduced without permission from the institutions where I took them. I'm just a rank amateur! Really, they shouldn't be on Wiki either, but I can't stop others from posting them there."
Usually, that's the end of it. I get an "oh, that kinda sucks," sort of reply, and life goes on. This time was different.
"Thanks for getting back to me about this. What I usually do is get permission from the photographer, you in this case, then I go to the institution or museum or whatever to ask them too. It is pretty 'dangerous' for me to simply publish an image without permission as it can lead to a book run being mulched and a law suit too! Too much worry involved in that. However I can't pursue this until the photographer is happy too. How do you feel personally about this."
This, I had to ponder. See, the larger my account gets, the more I fear the moment when I will stop "flying under the radar." I've got up 29,648 pictures at this exact moment. I've spent literally thousands of hours organizing, labeling, and mapping them. In terms of museums, by far the largest concentration are all of the pictures from the Metropolitan Museum of Art: 2806 photos currently bear this label, and doesn't include 20 pics that are uploaded but I haven't labeled or tagged yet, or two visits I've made since I got back, each of which probably has about a hundred more pics for the mix, maybe more, which are still on my camera awaiting transfer to the comp and uploading. Simply put, that's a WHOLE LOT. It's surely a noticeable percentage of the total works they've got on display (I'd guess 10% - 20% - which says something about the size of the museum. ;) ). Sooner or later, someone official will notice my existence. If what I'm doing is illegal, what happens then? In an ideal world, someone would contact me, let me know that I'm doing something wrong, I'd go, "Oh shit, sorry!" and change the licenses on all the offending pictures, and that would be that. This, however, is not an ideal world, and I've been living in terror that the actual outcome would be the summary deletion of my Flickr account. This, frankly, would be a catastrophe. I think it would break me. I've just put in SO much work.
Now, there are a couple additional things to note:
1. So if that's the danger, why would I take the chance and keep the pictures under a Creative Commons license? Well, it's important to me. I want my pictures to be useful to people. I want teachers to be able to put them in power points for their classes. I want kids to be able to use them in reports. I want that dude who contacted me and told me that he'd used my photograph as reference while actually smithing a spear to not have to worry about whether he's doing something wrong. I want them to be usable on Wikipedia (which, by the by, is the ONLY reason I haven't applied the Non-Commercial Use restriction to them, since for some reason that excludes Wiki, probably because Wiki does involve the exchange of money). Basically, this collection of photographs serves two purposes - the first one, obviously, is to be things I want to photograph. I don't take pictures of art I don't like (except in very rare instances and for specific reasons, such as "this is one of the most famous paintings in the world, I should take a picture). I started taking pictures of art because I will never own fine art like this, but I can win in the end by assembling a photography collection more amazing than any museum could possibly field. The other reason, though, came about when I realized that I could post a photo of a painting that would get hundreds of hits, because people want to see this stuff - by labeling them carefully, I can give people useful information. I've gotten thank yous for this! It really matters to me.
2. I actually HAVEN'T flown under the radar. The Robert Goldwater Library is the official group which runs the Metropolitan Museum of Art's halls of arts from Africa, Oceania and the Americas. Which is to say, it's a pool for pics taken at the museum administered by people who actually work for the museum. They've got about 30 of my pictures in their group - and they put the join request on my pix, not the other way around. So technically, someone official-ish has seen my pictures, and may have even noticed my attribution, and has not done a damn thing. But this is far from conclusive.
Based on all this, and a healthy does of fear, I spent a lot of time reflecting on this request, and finally, I sent the following response:
"Sorry about the very long delay, I've been considering this, and I've decided not to give my permission. I'm sorry."
This note produced a response pretty quickly:
"oh dear, can not change your mind..... may i ask what your objections are - i have to admit that you are the first person who has ever said no to having their image published in one of our books - i am interested in why. I hope this isn't too much of an imposition to ask."
Though I felt rather foolish, I decided to go ahead and explain as simply as I could what I explained rather convoluted-ly above.
"My reason, I'm sad to admit, is both a little selfish and a bit paranoid.
"I've done a lot of research on the nature of the Creative Commons license and copyright, and I'm still not actually sure about the legality of having my photos bear the license. This has made me rather nervous, and I often debate removing the CC license. As such, I don't really want my existence being brought to the attention of the museums in question, just because it makes me very nervous - I've put so much work into this account, and I fear that if I am, even accidentally, doing something inappropriate, my account could be lost. At the same time, it's important to me to have the images be CC, because one of the main reasons I maintain this account is to help people find the images they are looking for.
"If you knew the legality of this and could explain it to me (how the CC license interacts with the non-publication clauses of museums that allow photography), then, depending on the answer, I could be convinced.
"Either way, I appreciated the offer. I wouldn't have imagined I'd be a first!"
Well, she (I think it's a woman, though her name could be a guys name) wrote me back, and now I finally have a clear explanation of the current state of the copyright law on this matter.
"Thank you for your reply - I appreciate hearing all this and I am quite impressed. There are very very few people who are even aware of the copyright situation let alone wary of it and you are very correct to be.
"As it stands images that are CC Organization copyrights are covered to be shared legally.
"I will use your image and your situation simple as a descriptive tool here. You went to the Museum with your camera. You were given permission to take images (I presume as this is the norm) with a hand held camera but not with tripod. Is this correct. It don't remember if the AMNH is any different to other international Museums. Anyway i will presume that you took the images with full permission without any codicils (i.e. written down somewhere not to be put on the internet). You upload them onto Flickr. Flickr then gives you the right under the CC to share these images with whom ever you chose and you are completely covered by the CC. The Museum has no comeback to you as you legally took the images with their permission.
"If I want to use them for any reason, or anyone else too, especially professionally I would be one that is committing the copyright infringement by using images that I have no rights nor permissions for. My course at this stage is to seek your permission first as the secondary copyright holder of the image on your photo but the primary copyright holder of the physical object (digital can be described thus) of the photo. So therefore I have copyright permission for half of it but to cover myself legally I need to ask permission from the AMNH or whatever institution. Until i receive that permission i am infringing their copyright and am in breach of the law.
"So to summarize this lengthy email - the CC allows you to do as you wish with the images if you have legally been permission to photograph them so long as you do not use them commercially. Its the money which is the vital bit (as always).
"I must add though and this is important that copyright is changing all the time and even though Wikipedia/Flickr etc. are within the law now with their use of the CC Organization copyrights it is not internationally nor nationally settled by any means and may well change but that information would be very common knowledge in a very quick time as it would effect literally millions of images and uses all over the internet.
"Sorry about the length of this and i hope it helps! Thanks and good luck with your photography!"
All of which is to say - I've not done anything wrong, and I've done several things right, in that I always warn folks who talk about publishing my pictures that they'd have to contact the museums. (no one has ever asked about publishing one of the images that this restriction wouldn't apply to - no surprise there).
It's a big relief. I wrote her back and said that if that was the state of things, then I would change my mind and she could go ahead and see about using the image. :)
I know, a lot of text for something most people probably don't give a damn about, but this has been a background source of stress for me for around a year, maybe longer (pretty much started when my Flickr account broke 10k pics, not sure when that was) so I'm glad to have it resolved, at least for the moment.
The issue, in brief is this: I go to museums and take pictures. Typically, these museums have simple photography policies that state that photography is permitted without the use of a tripod and for personal use only. I then take these pictures, upload them to Flickr, label them, and give them the Creative Commons Share-and-Share-Alike license, which states that others can use them and even modify them, as long as they credit me and, ideally, inform me. What I've pondered - and, in truth, really worried about - for over a year now was if it was legal, under copyright law, for me to do this - especially the Creative Commons part.
While I was away, I got the following e-mail (I've removed the contact info and name of the person who contacted me.)
"Hello, i found your image of the Styracosaurus Albertensis on wikipedia and i'd like to use it (well part of it not the whole front of skull) in a children's educational book on dinosaurs. We want to show a close up of part of the horn and part of the crest."
I've gotten a few e-mails like this before - two or three from folks doing scientific journal publications, a couple others - and my answer is always basically the same:
"Thanks for getting in touch with me. I'm afraid that it's not in my power to grant this permission, as the photos I take at museums cannot be reproduced without permission from the institutions where I took them. I'm just a rank amateur! Really, they shouldn't be on Wiki either, but I can't stop others from posting them there."
Usually, that's the end of it. I get an "oh, that kinda sucks," sort of reply, and life goes on. This time was different.
"Thanks for getting back to me about this. What I usually do is get permission from the photographer, you in this case, then I go to the institution or museum or whatever to ask them too. It is pretty 'dangerous' for me to simply publish an image without permission as it can lead to a book run being mulched and a law suit too! Too much worry involved in that. However I can't pursue this until the photographer is happy too. How do you feel personally about this."
This, I had to ponder. See, the larger my account gets, the more I fear the moment when I will stop "flying under the radar." I've got up 29,648 pictures at this exact moment. I've spent literally thousands of hours organizing, labeling, and mapping them. In terms of museums, by far the largest concentration are all of the pictures from the Metropolitan Museum of Art: 2806 photos currently bear this label, and doesn't include 20 pics that are uploaded but I haven't labeled or tagged yet, or two visits I've made since I got back, each of which probably has about a hundred more pics for the mix, maybe more, which are still on my camera awaiting transfer to the comp and uploading. Simply put, that's a WHOLE LOT. It's surely a noticeable percentage of the total works they've got on display (I'd guess 10% - 20% - which says something about the size of the museum. ;) ). Sooner or later, someone official will notice my existence. If what I'm doing is illegal, what happens then? In an ideal world, someone would contact me, let me know that I'm doing something wrong, I'd go, "Oh shit, sorry!" and change the licenses on all the offending pictures, and that would be that. This, however, is not an ideal world, and I've been living in terror that the actual outcome would be the summary deletion of my Flickr account. This, frankly, would be a catastrophe. I think it would break me. I've just put in SO much work.
Now, there are a couple additional things to note:
1. So if that's the danger, why would I take the chance and keep the pictures under a Creative Commons license? Well, it's important to me. I want my pictures to be useful to people. I want teachers to be able to put them in power points for their classes. I want kids to be able to use them in reports. I want that dude who contacted me and told me that he'd used my photograph as reference while actually smithing a spear to not have to worry about whether he's doing something wrong. I want them to be usable on Wikipedia (which, by the by, is the ONLY reason I haven't applied the Non-Commercial Use restriction to them, since for some reason that excludes Wiki, probably because Wiki does involve the exchange of money). Basically, this collection of photographs serves two purposes - the first one, obviously, is to be things I want to photograph. I don't take pictures of art I don't like (except in very rare instances and for specific reasons, such as "this is one of the most famous paintings in the world, I should take a picture). I started taking pictures of art because I will never own fine art like this, but I can win in the end by assembling a photography collection more amazing than any museum could possibly field. The other reason, though, came about when I realized that I could post a photo of a painting that would get hundreds of hits, because people want to see this stuff - by labeling them carefully, I can give people useful information. I've gotten thank yous for this! It really matters to me.
2. I actually HAVEN'T flown under the radar. The Robert Goldwater Library is the official group which runs the Metropolitan Museum of Art's halls of arts from Africa, Oceania and the Americas. Which is to say, it's a pool for pics taken at the museum administered by people who actually work for the museum. They've got about 30 of my pictures in their group - and they put the join request on my pix, not the other way around. So technically, someone official-ish has seen my pictures, and may have even noticed my attribution, and has not done a damn thing. But this is far from conclusive.
Based on all this, and a healthy does of fear, I spent a lot of time reflecting on this request, and finally, I sent the following response:
"Sorry about the very long delay, I've been considering this, and I've decided not to give my permission. I'm sorry."
This note produced a response pretty quickly:
"oh dear, can not change your mind..... may i ask what your objections are - i have to admit that you are the first person who has ever said no to having their image published in one of our books - i am interested in why. I hope this isn't too much of an imposition to ask."
Though I felt rather foolish, I decided to go ahead and explain as simply as I could what I explained rather convoluted-ly above.
"My reason, I'm sad to admit, is both a little selfish and a bit paranoid.
"I've done a lot of research on the nature of the Creative Commons license and copyright, and I'm still not actually sure about the legality of having my photos bear the license. This has made me rather nervous, and I often debate removing the CC license. As such, I don't really want my existence being brought to the attention of the museums in question, just because it makes me very nervous - I've put so much work into this account, and I fear that if I am, even accidentally, doing something inappropriate, my account could be lost. At the same time, it's important to me to have the images be CC, because one of the main reasons I maintain this account is to help people find the images they are looking for.
"If you knew the legality of this and could explain it to me (how the CC license interacts with the non-publication clauses of museums that allow photography), then, depending on the answer, I could be convinced.
"Either way, I appreciated the offer. I wouldn't have imagined I'd be a first!"
Well, she (I think it's a woman, though her name could be a guys name) wrote me back, and now I finally have a clear explanation of the current state of the copyright law on this matter.
"Thank you for your reply - I appreciate hearing all this and I am quite impressed. There are very very few people who are even aware of the copyright situation let alone wary of it and you are very correct to be.
"As it stands images that are CC Organization copyrights are covered to be shared legally.
"I will use your image and your situation simple as a descriptive tool here. You went to the Museum with your camera. You were given permission to take images (I presume as this is the norm) with a hand held camera but not with tripod. Is this correct. It don't remember if the AMNH is any different to other international Museums. Anyway i will presume that you took the images with full permission without any codicils (i.e. written down somewhere not to be put on the internet). You upload them onto Flickr. Flickr then gives you the right under the CC to share these images with whom ever you chose and you are completely covered by the CC. The Museum has no comeback to you as you legally took the images with their permission.
"If I want to use them for any reason, or anyone else too, especially professionally I would be one that is committing the copyright infringement by using images that I have no rights nor permissions for. My course at this stage is to seek your permission first as the secondary copyright holder of the image on your photo but the primary copyright holder of the physical object (digital can be described thus) of the photo. So therefore I have copyright permission for half of it but to cover myself legally I need to ask permission from the AMNH or whatever institution. Until i receive that permission i am infringing their copyright and am in breach of the law.
"So to summarize this lengthy email - the CC allows you to do as you wish with the images if you have legally been permission to photograph them so long as you do not use them commercially. Its the money which is the vital bit (as always).
"I must add though and this is important that copyright is changing all the time and even though Wikipedia/Flickr etc. are within the law now with their use of the CC Organization copyrights it is not internationally nor nationally settled by any means and may well change but that information would be very common knowledge in a very quick time as it would effect literally millions of images and uses all over the internet.
"Sorry about the length of this and i hope it helps! Thanks and good luck with your photography!"
All of which is to say - I've not done anything wrong, and I've done several things right, in that I always warn folks who talk about publishing my pictures that they'd have to contact the museums. (no one has ever asked about publishing one of the images that this restriction wouldn't apply to - no surprise there).
It's a big relief. I wrote her back and said that if that was the state of things, then I would change my mind and she could go ahead and see about using the image. :)
I know, a lot of text for something most people probably don't give a damn about, but this has been a background source of stress for me for around a year, maybe longer (pretty much started when my Flickr account broke 10k pics, not sure when that was) so I'm glad to have it resolved, at least for the moment.
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BTW - which Flickr account? I'm dying to have a look!
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It's interesting... most museum artworks would be so in the public domain as creative works, while copyright of your photograph should adhere to you, as the photo taker. I guess the museum permissions are sort of like EULAs, "we let you in the building and using a camera under these conditions" but I don't know how much legal force that'd actually have.
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http://commons.wikimedia.org/wiki/Commons:Image_casebook#Art_.28copies_of.29
http://commons.wikimedia.org/wiki/Commons:Image_casebook#Museum_and_interior_photography
Sounds like a simple photo of a public domain painting is considered a mere copy and itself in the public domain -- not Creative Commons! 3D stuff different because the photographer gets to pick an angle. Dubious museum EULAs don't affect copyright status... which might not stop them from leaning on Flickr even if they're in the wrong.
http://en.wikiversity.org/wiki/Museum_photography#House_rules:_legal_and_psychological_aspects