Defining Non-Commercial Use
Some photographers’ licenses (such as through http://creativecommons.org/ [“CC”] or their own licenses) authorize others to use their images for “non-commercial” purposes. The problem then arises as to what is a non-commercial use? How would you classify these uses?
- Publication of your image in a newspaper on the front page.
- Use of your photo in an individual’s blog post adjacent to Google adWords.
- Distribution of your image in a poster or flyer to announce a charitable event.
- Display of your photograph by a U.S. corporation requesting donations for Haiti relief.
What you may consider to be commercial may be considered by someone else to be non-commercial. So proving whether the licensee infringed your photograph is more difficult. In light of the problem, Rebecca Tushnet over at the 43(B)log tells of some copyright owners modifying a CC license to define what constitutes a non-commercial use. In one case, the copyright owner added the following to the CC license: “‘NonCommercial’ as defined in this license specifically excludes any sale of this work or any portion thereof for money, even if the sale does not result in a profit by the seller or if the sale is by a 501(c)(3) nonprofit or NGO.”
What to do? You could use a CC license and add your definition of non-commercial as noted above. But it’s always best to be as specific as possible in your license. Rather than licensing your images for “non-commercial uses,” identify the exact uses allowed. An example is: “use of my photograph entitled ‘Boat in Rocky Mountains’ on the cover page of 5000 4″ x 11″ flyers to announce the River Keepers’ 2011 annual charitable dinner. This License is contingent upon Licensee’s placement of the photo credit: ‘Copyright 2010 Carolyn E. Wright’ adjacent to the Photograph on the flyer.”Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!