This post is written and translated by Paul Keller of CC Netherlands, first posted in Dutch on the CC Netherlands blog earlier today. Regarding one of the quotes below, to be clear, note CC licenses do not override fair use.
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Adam Curry wins again!
by Paul Keller
In 2006 Adam Curry initiated and won the first ever lawsuit centering around the use of a Creative Commons licensed work (English). Back then the Dutch gossip-mag ‘weekend’ had published photos from Curry’s flickr account without asking Curry for permission and the Amsterdam court of first instance decided that this use was explicitly prohibited by the non-commercial condition of the Attribution-NonCommercial-ShareAlike license that Curry uses for his Flickr pictures.
One would assume that other gossip-mags would learn from this and refrain from using photos from Adam’s Flickr stream, but exactly that happened 2 weeks ago when ‘Privé‘ used another picture to illustrate an article without Adam permission. As in the previous case Adam immediately reacted, this time by demanding that the publisher of Privé pay him a compensation for the unauthorized use or he would take them to court. Back then Adam wrote:
Instead of taking them directly to court I added twist this time, and gave them the option of paying 5000 euros directly to the War Child Foundation and my legal costs. Failure to comply by June 2nd and I will take them to court. It’s national news, lead story on the 6:30 news and all that good stuff 🙂
According to a public response from the magazine’s editor, they will ‘see me in court’ as they believe they have ‘fair use’ rights because of the picture’s ‘news value’. Pretty funny coming from a gossip rag.
While the deadline set by Curry passed without an official reaction from Privé it turns out that the defiant reaction form the magazines editor was not worth the paper it was printed on. Today Adam received a mail from from his lawyers indicating that Privé has settled along the terms provided by Curry in order to avoid the court hearing that was scheduled for the 23rd of June [translation from Dutch original by Creative Commons Netherlands]:
Dear Adam,
the conflict between Telegraaf Tijdschriften Groep (“TTG”), the publishers of among others Privé and yourself has been settled in your favor.TTG wil pay you an amount of compensation and TTG has signed a declaration (backed up by a penalty) that in the future they will no more infringe on copyrights held by Adam Curry in photos published by him on www.flickr.com. You will donate the compensation received to Warchild and STOP AIDS NOW!.
Given the above, the court hearing scheduled for the 23rd of july will not take place.
Creative Commons congratulates Adam Curry with this victory that once again illustrates that when necessary the Creative Commons licenses offer enough legal protection against unauthorized used of the licensed works. Thanks again Adam!
I am sorry to say that without having seen the article, I can’t decide for myself if they were right to use the image or not. AFAIK, at least in the USA, there are fair use clauses that allow certain uses for journalistic purposes (even if a judge has to decide if it was fair or not).
*If* The Netherlands are any similar, then they should be able to use the image without permission as long as the news item had an immediate impact, the image was attributed, and used in small size. That would be totally fair use in my personal opinion (I am no lawyer, it’s just my understanding of fair use laws in the USA).
If the article was a random editorial without time-critical importance, they used the image in a big size in a way that added significant value to their article but diminished the value of the original picture, then I agree with Adam’s actions.
There is obviously a fine line between fair use and not, but as I said, without having seen the original article, I can’t vouch for either the magazine or Adam.
But, it kind of bothers me that someone who uses Creative Commons goes after other people in this manner over a pic. While it’s certainly Adam’s right to do so, it’s not part of the Creative Commons culture. That’s my opinion anyway.
>>>But, it kind of bothers me that someone who uses Creative Commons goes after other people in this manner over a pic. While it’s certainly Adam’s right to do so, it’s not part of the Creative Commons culture. That’s my opinion anyway.<<
HUH? WTF is copyright protection good for then?????
btw, it was not relevant news (a gossip mag!) and it was printed on 1/2 a page.
I would have liked to have seen CC win this battle in court, but any win is better than a loss!