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Ready-Made Copyright Licenses
Delineating the Boundaries of Artistic Collaboration
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Any contemporary artist knows that there is little true originality in art. Rather, the history of art has been built upon the layers of artistic innovation that came before. These new constructions may be expressed as a complete replication (as an “after”) or perhaps, they may be perceived in the mirrored pose of a portrait sitter. This progression of shared ideas can be conceptualized, perhaps, as a vertical collaboration of artists. The concept of open collaboration in contemporaneous time is an extension of this natural sharing process. In the European tradition, collaboration occurred historically, in a sense, within the studio of a Master artist. The apprentices or students may have performed a portion of the whole work, eventually merging with the Master’s touch. At least since the mid 20th century, a planned and non-hierarchical form of collaboration could found in collective art productions.
As an extension of collaborative tradition, in the recent past there has been a reaction against the constraints of the expanding term of copyright protection and a desire to freely share artistic expression, music, and software code. Donating works to the public domain and relinquishing all copyright protection became a point of interest. (Sometimes referred to as copyleft). Licensing is an alternative to a public domain donation. The process of licensing operates in conjunction with the existing law of copyright and can be designed to create freely shared expression, along with the retention of certain rights to the original artist.
In essence, a license is a voluntary giving-away of some or all copyrights in a work. Licensing conditions vary and may limit the ways in which an artistic work may be used, or it may include the requirement for a royalty payment. A license may also include time limitations or other conditions. For example, an artist may license the use of an image of her sculpture to a gallery for the purpose of producing promotional materials. The license may specify that the gallery has the right to copy the image, but it may also contain the condition that the right to copy terminates when the exhibition concludes.
The licensor is the person who offers the license, and in the context considered here, this is usually the original artist. The licensee is the person to whom the rights are given; the person who makes use of the work under the license agreement. In the previous example, the artist is the licensor and the gallery is the licensee.
Public Domain Donation versus Licensing
When deciding upon a public sharing arrangement, there are typically a couple of different options. One option is to donate your work to the public domain. This is means that you, the donating artist, are completely and permanently relinquishing the copyrights of particular artwork that was created by you. Anyone can then use your work freely, without infringing, for any and all purposes. A thorny issue relevant to public domain donation is that someone can then use your artwork in a way that you may find offensive or objectionable. If the artwork’s copyright has been donated to the public domain, the artist may have no legal recourse for limiting objectionable uses. (Local artist rights or defamation laws may possibly provide some protection, but this is unclear). A donation to the public domain may be done in writing and by attaching this statement to the work in some way. However, in some countries relinquishing rights in this manner is not legally valid and does not create a public domain work.
Another option is licensing. As described above, a license is a grant of permission to another person, giving that person the right to make some specific use of your artwork. In the past licensing could be a complicated process, often involving a lawyer. For many purposes that is still the case, particularly when commercial transactions are involved. However, there are now general copyright licenses, which are referred to here as ready-made licenses, available online, that anyone can use to license their work.
Ready-Made Licenses
The availability of ready-made licenses is largely due to the efforts of software developers who had an interest in producing non-copyrighted operating systems. This was in the spirit of collaboration, with a shared goal of technological development and public access to the software. An early licensing scheme for this work is known as the GNU license. Since then licenses have been created that are designed to encompass media beyond software. One well-known source of free ready-made licenses is Creative Commons. The licenses provided by Creative Commons offer different configurations of end-user (licensee) restrictions that are based upon the typical concerns of licensors (the artist or author). The artist/author can select a license based upon the limitations that he or she wants to impose upon a future user of the artist/author’s work.
The licenses may contain restrictions on activities or require the licensee to perform a certain positive action when using the licensed material. A license involving the issue of attribution would include the positive requirement that the end-user licensee ensure that the original author’s name is attached to the copies or derivative (new configuration) works. The text of the actual license agreement will probably specify how this attribution is to be made, whether it should be made by including a link to the original artist’s web page, or just by identifying the artist by name or by another method. Whether or not a copy or derivative work may be used for commercial purposes is another common specification of the ready-made licenses. There are also licenses that contain prohibitions from making derivatives (adaptions) from the licensed work, and a requirement that the same licensing scheme is attached to derivatives and copies.
Generally, these ready-made licenses are intended to be attached to work that is accessible on the internet. Upon selecting a license, html code is provided by Creative Commons that can be copied onto the website that displays the artwork. The code will create a notice about the license and a link to the Creative Commons website where a full copy of the licensing agreeement can be found. It may also be possible to use the license for other electronically transmitted works (e-mail, i.e.) by including a link to the correct licensing page within the file/info section of the image file.
Following is a comparison chart of some Creative Commons licenses that are applicable for visual artwork:
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License
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Can make
Copies (reproductions)
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Can make Adaptions (derivatives)
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Can incorporate
in a
Collection (compilation)
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Can distribute, perform, share
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Can use for
commercial
purposes
(for payment)
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NO commercial uses permitted
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Attribution is Required
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Adaptions or Copies must be licensed with same terms
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Notes
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 CC - BY
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A broad license-the main requirement for licensee is to ensure that the work is attributed to original author/artist.
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with notice of alterations/changes to original work
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CC - BY / SA
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Licensee may make adaptions (derivatives) for commercial purposes, so long as there is attribution to the original author/artist.
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Copies only permitted when they are part of a collection (compiliation) or adaption (derivative)
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with attribution & notice of alterations/changes to original work |
with attribution |
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with attribution |
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CC - BY / ND
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NO
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No alterations to the original are allowed by licensee, but may use the intact original for commercial purposes.
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only of the unchanged original or as part of a collection; and with attribution |
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when part of a collection, the collection as a whole is not subject to using the same terms, only the original (licensed) work contained in the collection must be (re) licensed with the same terms of this license
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CC - BY / NC
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NO
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NO
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Licensee may make adaptions (derivatives) so long as they contain attribution, but no commercial use is permitted.
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with attribution/non-commercial & notice of alterations/changes to original work |
with attribution/non-commercial & notice of alterations/changes to original work.
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CC - BY / NC /SA
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NO
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Any adaptions or derivatives made by licensee must be for a non-commercial use.
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with attribution/non-commercial & notice of alterations/changes to original work
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CC - BY / NC / ND
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NO
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NO
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This is the most restrictive license of the current series. Licensee may only distribute the work, so long as attribution and a link back to creator's website is included. No derivatives / adaptions are permitted.
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(only permissible as technically necessary to exercise permitted uses, e.g., to display web page on a computer monitor)
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Only in original form (unaltered) or as part of a collection |
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Key: Copyright Owner Rights Relinquished. Positive Requirements on End User Licensee. Negative Requiremnets on End User Licensee.
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This chart is provide for informational and general comparison purposes only, it should not be used to determine legal rights or responsibilities. For full information and precicse details of the specific licenses go to the Creative Commons website at www.creativecommons.org. Be aware that these documents may change or be amended over time. (Last viewed 1/9/2009).
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All of the above licenses include a provision that initiates a termination of the agreement (the license) when a licensee breaches (fails or breaks) one of the conditions. Each of these licenses also provides that a licensee may not use a technological measure to prevent others from using the material. No sub-licensing is allowed. Licensees are also restricted from taking “derogative action” that may damage the reputation or honor of the original artist. This seems to be an effort to rectify moral rights issues, but the actual license terminology may be too vague (and possibly unenforceable). For more information on moral rights, see The Value of Art and the Natural Rights of the Artist: A Discussion of Moral Rights.
CC+ is a new licensing option that can be customized to incorporate commercial issues, provide warranties, or other conditions. It is intended to work in conjunction with one of the preexisting Creative Commons licenses.
CC0 (CC zero) is a mark created by Creative Commons that is intended to facilitate donating a work to the public domain by indicating that the copyright owner waives all rights. The legal implications of this mark are unclear and it is likely to be invalid in jurisdictions that do not permit waiver in this manner.
Additional licensing schemes are available at Creative Commons for software and other computer applications. Some of these licenses may also be applicable to certain types of computer media art, such as that which includes original source code.
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Pros / Cons
The primary benefits of these ready-made licenses are that they are easily accessible and offer a free and simple way to license artwork. There are also some potentially negative aspects to using this type of license for visual art and this should be considered as well.
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Irrevocability / Inability to Cancel the License. Most of the ready-made licenses state that they are "perpetual." Once given and accepted by the end-user, the license may not be revocable by the licensor artist.
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Jurisdiction. Because the licenses lack a jurisdiction clause (which would specify that a person must submit to the power of a certain court in the event of a dispute–as a condition on using the license) it may be impossible to bring a defendant into court in the event of a dispute. This is particularly a problem with works distributed on the internet where a potential defendant (a licensee who has breached the agreement) could be anywhere in the world. Additionally, the lack of a choice of law clause may further complicate this type of situation, depending upon where a court perceives that the potential violation occurred. For an example, refer to the recent Chang v. Virgin Mobile decision (dismissed due to lack of personal jurisdiction over the defendant).
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Enforcement. Because such a license may be perceived as just a symbol (mark) rather than a signed contract between two people, it may not serve as a strong enough motivation for licensees (later users) to investigate and abide by the terms of the actual license. Some of the licensing terminology is vague and may not be enforceable against a licensee in a court of law. Also, in some jurisdictions the strength of the license may be weakened or void due to an incompatibility with local law.
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Unintended Consequences. The full implications of a licensing scheme may not be clear to users. The actual (full) license agreements are written in legal terminology. The obligations created and the breadth of rights relinquished may be somewhat opaque to both the licensor artist and the licensee user as well.
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Unanticipated Uses. A ready-made license may be insufficient for individual circumstances. Unanticipated uses by a licensee may be in conflict with the intent of the licensor artist, but such a use may not fall under the restrictive terms of the license. It may not be possible for a casual user to predict the full implications of a particular license and potential uses of the artwork. (Refer to case law example below).
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Misunderstanding / Incomplete Knowledge. The various of flavors of ready-made licenses, and the similarity of their symbols, may lead to a casual misunderstanding of their meanings. Both licensors and licensees may fail to read the full licensing text and rely instead upon the brief summaries or symbols alone, there by misunderstanding some aspects of the license.
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Legal History / Non U.S. Status. Ready-made licenses may not have been sufficiently legally tested to prove their absolute validity in the U.S. and other countries. Also, these licenses may not be valid in some countries where, for example, moral rights cannot be waived in this form. This presents problems particularly in regards to artwork displayed on the internet and users reliance upon a ready-made license. In some countries the licenses may be potentially incompatible with copyright statutes as well. (It should be noted that Creative Commons has made an attempt to deal with this issue and offers some licenses based upon the laws of specific other countries. However, it is probably not possible to license a web-based artwork universally).
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Confusion. The growing multitude of ready-made licenses available may serve to create more confusion and complexity in copyright matters.
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Also, because these licenses are focused on the “free” use of works, they are generally not suited for direct commercial transactions, such as that between a free-lancer or other work-made-for-hire type situations, or in a for-pay royalty arrangement. And, because licenses are by definition a limitation, they may not fulfill some user's dersire for free exchange of expression. |
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Alternatives
If an artist wants to put her artwork online for collaborative or distribution purposes, but the ready-made licenses are insufficient there are potential alternatives to consider. Each of these options has specific benefits and detriments.
Custom License: This may be written or created by the individual artist or by a lawyer. A license produced by a lawyer should consider all of the possible uses of the artwork and the subsequent results. The license can be tailored to the needs of a particular situation. The downside to this option is primarily the expense, and therefore it may be best reserved for complex or commercial transactions. An artist may write his/her own license as well. The downside of this option is that there may be legal implications that may not be fully anticipated by the artist, which may cause subsequent enforcement or legal rights problems.
Modify a ready-made license: While it is unclear as to how this may function in the event of a future legal problem, it may be possible to modify one of the free licenses. For example, an artist may choose a license that allows for derivative uses but adds the additional condition that the work may not be used to promote particular objectionable causes, or for particular purposes. This type of limitation would probably have to be fairly specific, identify and describe the restricted use precisely. This option adds a custom element to the license, but the downsides are the same as those mentioned above for a custom license. There may also be a problem in terms of adequately indicating the terms of the license or sufficiently attaching it to the artwork. (See information about CC+, above). The simplicity of the marks for the ready-made licenses may be lost with the additional conditions.
Retain all rights: This is the default position. Because works are automatically protected upon creation in the U.S., all of the copyrights are retained unless they are specifically relinquished. An artist may reserve all rights and then license specific rights out to individuals as needed. The copyright symbol is not required, however to clarify this position a work may be marked as “Copyright © 2009 Artist Name. All rights reserved.” Contact information should also be included in some form for potential licensees, particularly if the work will be posted online.
In a Photoshop/JPG file any of this information can be added to the File Info setting along with a website address that posts contact information, or perhaps, licensing information. For certain images it may be appropriate to mark the actual image with the copyright or licensing symbol.
Making Use of Licensed Materials
A person becomes a licensee when he or she is offered and accepts certain rights from the copyright owner, and then performs some action that creates the obligation stated in the license. Often, the actual use of the work triggers acceptance of the license. In such a situation, it is important to read the full license itself and understand the responsibilities and restrictions that you are agreeing to abide by. Whenever you decide to use licensed material it is a good idea to keep a record of the license itself and make sure that you are abiding by its terms and conditions.
In conclusion, using a ready-made license may be an appropriate choice for an artist that wants to share his or her work and who has a clear idea of which rights he or she wants to give up. Users should consider the limitations of such a license and the possibility that once relinquished, the copyrights may not be restored. If in doubt, consultation with a legal professional should be considered.
Note:
A small point should be mentioned in regards to “copyleft.” This term refers to the concept of a work that is free of copyright protection and suggests a donation to the public domain. However copyleft is not a legal term, and works identified in this manner do not necessarily create public domain materials. It would be prudent for a potential user of the material to contact the copyright owner and verify that the work has been donated to the public domain or seek a license to use the work.
Related Articles:
Copyright Basics
Authorship and Ownership
For more about Moral Rights, see The Value of Art and the Natural Rights of the Artist: A Discussion of Moral Rights
Resources:
Creative Commons: www.creativecommons.com
For operating system/software licenses, see the GNU project at: www.gnu.org
Related Caselaw:
Very little case law appears to exist in the U.S. on matters related to Creative Commons licenses. One recent case, Chang v. Virgin Mobile (January 2009), was filed in Texas and dismissed due to lack of personal jurisdiction over defendant Virgin Mobile, an Australian company. In the facts of the case, an image of a child was placed online in Texas with a Creative Commons license. Virgin Mobile allegedly used the image for extensive advertising purposes. Based upon the information provided in the decision, it may have been a valid act within the terms of the license, but there may be other issues involved that were not discussed in the decision, such as publicity rights. The decision is reproduced here for informational and reference purposes: Chang v. Virgin Mobile.
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This article was last modified on February 16, 2009.
Copyright © 2009 Jennifer Unruh. Licensing Information.
Neither the author or www.artuntitled.com are affiliated with or endorse Creative Commons or any other similar organization or services.
Unless otherwise stated, the original writings contained in this website are solely the expression of opinion by the author(s) and are not intended to provide or be a substitute for professional legal advice. Statues and other governmental publications are provided for informational and educational purposes only. For legal matters, the advice of an attorney should be timely sought. Be aware that the preservation of legal rights may be time sensitive. The author(s) does not promote or endorse any particular legal service provider. This website is not attorney advertising.
Excluding government publications and other public domain materials, and unless otherwise stated, all literary content and text on this website is Copyright © 2007 - 2009 Jennifer Unruh. All rights reserved. Licensing Information. Website design including, but not limited to graphic design, images, and arrangement, are Copyright © 2007-2000 Jennifer Unruh unless otherwise indicated. All rights reserved. www.artuntitled.com |
