The Atlantic Wire's Interpretation of Creative Commons Licensing for Photographs - Amended
NB: An update is included at the bottom.
Recently, The Atlantic Wire published one of my photographs in an article about cold coffee brewing methods. The photo was from a series of photos I posted on Flickr showing step by step how to make iced coffee (they have since removed the photo but here is a screencap:)
The problem is, The Atlantic Wire didn’t ask me to use the photograph or pay me for use of the photograph, which I have (along with all my Flickr photos) under a Creative Commons Attribution-NonCommercial-NoDerivs license. This license means any use of it must include full attribution to the source. The photo must not be altered in any way. And the photo cannot be used in any commercial way, be it in advertising, in print, in articles, on websites with ads, or any other kind of commercial use.
So I contacted the Editor at The Atlantic Wire, Gabriel Snyder, explained my position and ownership of the photo, and included a bill for the photo, charging my standard web-use single image rate of $50, plus a penalty of $25 for the non-compliant use of the photo. (NB, I would not act like this woman).
What resulted was several back and forth emails. First Mr. Snyder claimed The Atlantic Wire had editorial prerogative to use my photograph without permission or payment. He also intimated that their use of the photo wasn’t “commercial” because they weren’t using it in an advertisement or the like. I wrote him back, stating that as a professional photographer, I sell my work to magazines, newspapers and web sites all the time for use in features articles, like the one The Atlantic Wire ran. I also stated there’s a broad difference between Editorial Use of a photo (ie, for a current news story) and pulling photos from the Internet to use for features articles.
More polite back and forth occurred, and eventually, I wrote this to Mr. Snyder as my (now second) last email:
I’d like to tell you briefly why I chose the Creative Commons license I use. I chose it because I feel far too many of my peers have locked down their photographic work, often with restrictive, limited use licensing, and exorbitant fees, even for private individuals just wanting to use a photo on their blog. I want those who just like my photography and want to showcase it on their personal blog or website to feel very free to use my imagery without direct permission or payment. I want non-profits, charities and other not-for profit companies to feel they don’t have to break the bank to be able to make use of my photographs - in fact, if my photographs help a charity raise money, it makes me very happy I picked the licensing I chose.
But by choosing this license — intended to release my photos to open usage under simple terms by those who fit the non profit / no commercial usage — it appears that companies like yours are twisting this and abusing this to avoid doing what is right: paying for the use of creative photographs for commercial use to add flourish and colour to an article you hope people read and in turn perhaps click an ad or two to make your advertisers happy.
This is not a case of me shooting some amateur random cell phone photo of a fire or car crash or downtown newsworthy scene and posting it to Flickr or Twitter, and then The Atlantic Wire discovered that photo and decided to exercise “editorial” over to publish in a news article.
This is a case of a features article using my creative works to help add colour and impact to said article, which is for commercial gain for the Atlantic Wire website, and nothing else.
Please pay my invoice. Respect my creative work and copyright. I’m very liberal with my copyright choices to aid those who derive no income, direct or indirect from the use of my photos, but you are attempting to abuse that choice of copyright.
Mr. Snyder’s response, which I won’t print without his permission basically stated this: it was basically my fault that The Atlantic Wire thought they could use my image for free because I chose to use Creative Commons Non Commercial Licensing. If I truly didn’t want them to use my photo, I should have used the “All Rights Reserved” option, I was told in my last email from Mr. Snyder.
Further, in his email he pretty clearly implies that The Atlantic Wire’s policy is to assume that any photo under Creative Commons Licensing is free for them to use, without payment or notification, regardless of the CC license you choose, non commercial, no derivatives, anything else like that.
I’ve written Mr. Snyder one more time to let him know I would make the Photography Communities online know about The Atlantic Wire’s position on photography and payment, and the way they interpret the Creative Commons license. I didn’t bother to challenge his changing stance, first claiming editorial right to use the photo, then saying my Creative Commons license allowed him use, but they still removed my photo from the website.
Lastly, I am seriously considering removing CC licensing from everything I have online (I’ve also applied Creative Commons licensing to all of CoffeeGeek.com’s content for the same reasons I stated above) because of The Atlantic Wire’s lack of respect for CC licensing and the creative works of photographers. It’s a real shame too. I love it when my photography work or my written work helps charities do what they do. I love it when someone who has a personal fan blog likes my writing or photographs enough to want to use them on their website. But I may have to take away that ease provided under Creative Commons licensing. Because of big commercial websites like The Atlantic Wire.
(Side Note: in all my photos at Flickr, in the EXIF I’m pretty clear. Theres’ no less than 5 separate copyright notices and the EXIF also contains this bit: Special Instructions: This photograph can only be used under strict adherence to Creative Commons Licensing CC BY-NC-ND 3.0)
Addendum: Small typo corrections done. Also, I do want to say that Mr. Snyder was polite and prompt in all his emails to me. If this post generates any emailing to The Atlantic Wire or Mr. Snyder, I ask you to please be respectful and polite.
And I’d add - they didn’t even use a very good photo of mine for the article! I have much better iced coffee photos all over the place. I happen to really like this one.
UPDATE: I received word on June 19 that The Atlantic Wire will proceed and pay the invoice I sent to them. In their email, they did state that they still believe my licensing and their use of the image falls under non-commercial usage, but they have agreed to pay my invoice in full to settle this matter.
I am happy they are doing this, but at this point, I’d just be happier if they fully respected the intent and spirit behind the non-commercial nature of the “BY-NC-ND 3.0” licensing, and I’d even waive my fee if they publicly agreed to do this.
Creative Commons licensing was created to provide a much more fair and “simple language” method of licensing creative works. It is a multi-tiered copyright licensing schema, and every single content creator I’ve discussed this with that uses CC believes the “no commercial use” tier is plain language copyright indications that no for-profit use of content can take place without other licensing agreements. When media outlets do not follow this licensing, the creative community and Creative Commons need to stand up to this and reiterate their copyright and what it means.
I would very much like it if The Atlantic and The Atlantic Wire made a public statement about respecting the intent and the wording of all the Creative Commons licensing. It would go a long way to helping keep what is a great copyright system in place that is much more fair than “all rights reserved” in this modern digital age.
