CC lawsuit?

It looks like someone is going to file a suit over a
Creative Commons work. A Northeast Ohio blogger claims
that an Ohio candidate has inappropriately used a
photograph in an attack ad. Here are a couple related
posts from said blogger's ...er... blog:

http://ohio2006elections.bl
ogspot.com/2006/09/ohio-house-57th-martin-r-steals-my.html
http://ohio2006elections.
blogspot.com/2006/09/have-you-seen-attack-ad-against-matt.ht
ml

The NEO blogosphere congregates around a blog called
Brewed Fresh Daily which has at least a couple related
posts:

http://www.brewedf
reshdaily.com/2006/09/20/ohio-gop-invites-neo-blogger-to-tak
e-them-to-court/
http://www.brewedfreshdaily.com/2006/09/18/unfair-use/

There are several trackbacks on the posts which you
can follow to see other opinions. Mostly these are
just displays of support from fellow bloggers.

There are several issues. I'm new to the list so these
issues may have been settled but they're open as far
as I can see.

The photograph was licensed under BY-NC-ND. It was
used in a television advertisement. Some people are
alleging that this is a derivative work but I'm not
sure that it isn't a collective work. The photograph
wasn't altered,  merely included in another work. Some
people are also alleging that it was a commercial work
but all the money involved went from the candidate to
the ad agency, the TV station, etc... I'm not sure
it's a commercial use. It's clear that there was no
attribution but the license says that the credit must
be given in a manner "reasonable to the medium"
so
that it is at least "as prominent" as other
credit
given in the work. I'm not sure what standard for
attribution this sets for television advertising.

I'm sure it's far too early to tell whether this will
have any significant impact on the CC community. I
think it's very likely that the parties responsible
for the tv ad will back down from the threat and
behave exactly as though the photograph were an
all-rights-reserved copyrighted work. Does that in and
of itself mean anything to the CC community? As I
said, I'm not sure that the CC license holder is on
solid ground in his interpretation of the license. How
significant would it be for one of the first CC
related lawsuits to be based on such shaky ground? Are
my doubts reasonable in the first place?

Finally, I was unsure whether this belonged in on the
cc-community list or on the cc-license list as it
discusses the detail of the BY-NC-ND license. Or both?

-Stuart
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Stuart Spivack wrote:
>  It looks like someone is going to file a suit over a
Creative Commons
>  work. A Northeast Ohio blogger claims that an Ohio
candidate has
>  inappropriately used a photograph in an attack ad.
Here are a couple
>  related posts from said blogger's ...er... blog:
[...]
>  The photograph was licensed under BY-NC-ND. It was
used in a
>  television advertisement.
[...]
>  I'm sure it's far too early to tell whether this
will have any
>  significant impact on the CC community. I think it's
very likely that
>  the parties responsible for the tv ad will back down
from the threat
>  and behave exactly as though the photograph were an
>  all-rights-reserved copyrighted work. Does that in and
of itself mean
>  anything to the CC community? As I said, I'm not sure
that the CC
>  license holder is on solid ground in his
interpretation of the
>  license.

Sounds like the real point of this lawsuit is not proper
attribution
or collection of royalties, but rather the suppression of
the
opposition's speech.  Shouldn't this be a question of fair
use?

The use of copyright law, with or without the CC license, to
suppress
political speech would be a terrible precedent.

Political speech is the most important kind to protect, and
is the
real raison d'etre for the US 1st Amendment  protection of
the freedom of speech. If you have the freedom of political
speech,
you have the fundamental tool necessary to fight for any
other
kind of speech, but without it, all democracy founders.  It
would
be unconscionable for CC to support such a perverse use of
copyright law.

I have some faith that they will see it that way, too.

Cheers,
Terry

-- 
Terry Hancock (hancockAnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpac
eworks.com

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> Finally, I was unsure whether this belonged in on the
> cc-community list or on the cc-license list as it
> discusses the detail of the BY-NC-ND license. Or both?

The "license" list is more for discussing new
licenses,
license changes, and questions about licenses. Though
there is some overlap, I'd say this is probably the
correct list.

> How significant would it be for one of the first CC
> related lawsuits to be based on such shaky ground?

I don't see it as significant. It won't change the
effectiveness of the license if someone brings a lawsuit
and loses because they misunderstood what the license says.

Just a quick assessment, the "BY" part of the
license
looks to be the easiest to tell if there has been a
violation.
If the photo was used and the original photographer was
not given attribution in the advertisement, then that's
a violation of the license.

As for NoDerivatives, I'm not sure. If the photo was used
unaltered in a TV ad, then it *may* be a collective work
or it may not.

As for NonCommercial, that's a tough one too. CC's
definition
of NonCommercial is fairly complicated and has been the
subject of a lot of work trying to nail down exactly
what it means. I'm not sure how political advertising
compares, but I believe the NonCommercial clause has
at least two bits that might make the ad qualify as NC.

See the NC license legal text here:
http://creativecommons.org/licenses/by-nc/2.5/legalcode

Specifically:

::You may not exercise any of the rights granted to
::You in Section 3 above in any manner that is primarily
::intended for or directed toward commercial advantage or
::private monetary compensation.

I don't know if a political ad violates this.
The ad isn't selling the photo, and it isn't
advertising something else that might be sold.
It's trying to get someone elected to office.
So, I'm not sure if a judge would see any
"monetary compensation" going on that would
violate the license.

Greg
-- 
Wikipedia and the Great Sneetches War
http://www.somerigh
tsreserved.org


> It looks like someone is going to file a suit over a
> Creative Commons work. A Northeast Ohio blogger claims
> that an Ohio candidate has inappropriately used a
> photograph in an attack ad. Here are a couple related
> posts from said blogger's ...er... blog:
>
> http://ohio2006elections.bl
ogspot.com/2006/09/ohio-house-57th-martin-r-steals-my.html
> http://ohio2006elections.
blogspot.com/2006/09/have-you-seen-attack-ad-against-matt.ht
ml
>
> The NEO blogosphere congregates around a blog called
> Brewed Fresh Daily which has at least a couple related
> posts:
>
> http://www.brewedf
reshdaily.com/2006/09/20/ohio-gop-invites-neo-blogger-to-tak
e-them-to-court/
> http://www.brewedfreshdaily.com/2006/09/18/unfair-use/
>
> There are several trackbacks on the posts which you
> can follow to see other opinions. Mostly these are
> just displays of support from fellow bloggers.
>
> There are several issues. I'm new to the list so these
> issues may have been settled but they're open as far
> as I can see.
>
> The photograph was licensed under BY-NC-ND. It was
> used in a television advertisement. Some people are
> alleging that this is a derivative work but I'm not
> sure that it isn't a collective work. The photograph
> wasn't altered,  merely included in another work. Some
> people are also alleging that it was a commercial work
> but all the money involved went from the candidate to
> the ad agency, the TV station, etc... I'm not sure
> it's a commercial use. It's clear that there was no
> attribution but the license says that the credit must
> be given in a manner "reasonable to the
medium" so
> that it is at least "as prominent" as other
credit
> given in the work. I'm not sure what standard for
> attribution this sets for television advertising.
>
> I'm sure it's far too early to tell whether this will
> have any significant impact on the CC community. I
> think it's very likely that the parties responsible
> for the tv ad will back down from the threat and
> behave exactly as though the photograph were an
> all-rights-reserved copyrighted work. Does that in and
> of itself mean anything to the CC community? As I
> said, I'm not sure that the CC license holder is on
> solid ground in his interpretation of the license. How
> significant would it be for one of the first CC
> related lawsuits to be based on such shaky ground? Are
> my doubts reasonable in the first place?
>
> Finally, I was unsure whether this belonged in on the
> cc-community list or on the cc-license list as it
> discusses the detail of the BY-NC-ND license. Or both?
>
> -Stuart
> _______________________________________________
> cc-community mailing list
> cc-communitylists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>


-- 
Wikipedia and the Great Sneetches War
http://www.somerigh
tsreserved.org

What happens when one editor prefers
Sneetches with stars on their bellies,
and another editor prefers no stars on thars.

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Hi All,

Thanks for the insights so far. I'll research some more of
items in
play shortly. But, off the cuff...

IMHO, a political ad would not be a commercial ad. The
public race of
a candidate it to secure a VOTE or an OPINION (as in public
opinion)
of the viewer. That is not PRIVATE monetyary compensation.
It is very
PUBLIC.

I agree with Greg's prior post, FWIW.


Ta.

Mark Rauterkus     MarkRauterkus.com
http://Rauterkus.blogsp
ot.com
http://Rauterkus.com     
        http://Platform.For-Pgh.o
rg
412 298 3432 = cell
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