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?

  1. Publication of your image in a newspaper on the front page.
  2. Use of your photo in an individual’s blog post adjacent to Google adWords.
  3. Distribution of your image in a poster or flyer to announce a charitable event.
  4. 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.”

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