OK - one for all you copyright gurus out there…

In an incident that may make you laugh, given my day job, I reckon a damned MSM company - AOL - has stolen a photograph I took to illustrate a post, as seen above.

The image was nothing special - this snap of Alcatraz I took while in San Francisco a few years ago - but the AOL blog Gadling used it to illustrate a piece (if you click through, that’s not my image on there now). As you can see, they stuck my name on the bottom of the image and linked back to the original Flickr page, but my position is they did that in breach of the Creative Commons license I use on Flickr, which clearly forbids using the image for “commercial purposes”.

Sticking my image on their corporately-owned, advertising strewn page is, in my book, a commercial purpose. They’re using my content as part of their editorial proposition.

I complained on April 12, when I found they’d been using the image (for around two months) and they removed it quite quickly. It took until yesterday to send me an email, however, saying:

“The picture in question was taken from a public gallery on Flickr and used for an editorial purpose, not a commercial use. Gadling used a thumbnail sized photo which linked back to the original source and which provided you with attribution. The important distinction here is that it is not the user of the photo that must be examined. In this instance, the use of the photo was for an editorial purpose and therefore allowed under the creative commons license you granted.”

Now, to my mind this is close to the old “it’s on the internets so must be free” excuse of old. They’re augmenting that by saying I shouldn’t look at the publisher of the page - big ol’ ugly AOL - but the use, which was editorial. Does that make it free? I doubt it, but I can’t be sure.

So I’m interested in this on two levels. First, are they right? Is this particular level of CC license such that, in fact, a large corporation can use your work on their commercial site without paying up? If that’s the case, I think there are lots of CC users out there who should know. What is the commercial purpose that CC license forbids if it’s not something like this? I’ve no problem with anyone using an image licensed for commercial use… but this? I’ve heard lawyers in the UK snort derisively at the whole CC idea… is it, in fact, pretty much useless?

Second, if AOL are wrong, I’d be surprised if they haven’t used a bunch of images in this way - there may be quite a few people being ripped off. It must be a rich source of free photography for them.

That said, it’s not the money I’m interested in - I’ll happily donate that to charity, if someone with expert knowledge can help me prove the principle. This seems like something that would be interesting to pursue. If anyone can help, or knows someone who can, do let me know in the comments, or by email.

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