Exploring Commercial versus Noncommercial Use of both
Creative Commons and Copyrighted Photographs.
The Creative Commons Attribution-NonCommercial-NoDerivs License
(by-nc-nd) prohibits any use "primarily intended for or directed toward commercial advantage or private monetary compensation"
In September 2009, Creative Commons published their report, Defining Noncommercial. The study, which took over a year to conduct, "included in-depth interviews and two waves of in-person and online focus groups and online questionnaires", in an attempt to define how people understand Noncommercial Use of Creative Commons licensed content. Over 80% of participating users and creators agreed that advertisements constituted commercial use. Of course there were caveats for nonprofit and nonprofit news, which is the main purpose of this blog. There are a number of websites blurring the line between commercial and noncommercial use, making it difficult even to apply a
"fair use" argument given the treatment of the images and the surrounding advertisements. The purpose of this post is to offer some real world examples of commercial versus noncommercial image use of photography for discussion and education.
"I'll know it when I see it" - Justice Potter Stewart
The Smurf Supper:
The Smurf Supper on BlueBuddies.com
The Smurf Supper on StupidVideos.com
The Smurf Supper images became popular after they were posted to both
Reddit and (the old) Digg. Since I hold no rights to the Smurfs, the images were not offered with any Creative Commons License, however that didn't stop a number of sites from re-hosting them, with some going as far as to drop their own logos on the images. None asked for permission. According to the counter on the Stupid Videos page, it's been viewed over 16,000 times. With two banner ads per page, that's 32,000 ad serves, with no attribution. How do I know it's a commercial site beyond the ads on the page? The copyright at the bottom reads © 2010 Grind Networks. All rights reserved. GrindTV.com, part of the Yahoo! News Network.
The Smurf Supper also made an appearance on Popped Culture, and later, CelbriFi. These two sites both have advertisements. Popped Culture has a Capitalism Section, with a single ironic Amazon ad (currently, the History of Popcorn), while CelebriFi has pop-ups, banner, sidebar, and footer ads. Situations like this really expand the commercial versus non debate. What if one website is covered in ads but receives little traffic, while another site with a higher readership needs only one? What is "need" and at what point does it become commerce? Plenty of sites (hear, here!) include donation options or look to a single sponsor or ad placement in order to support the site, however how do you determine that the line has been crossed from support to profit?
Adserving Link Farms
There are websites out there whose sole purpose is generate click-through revenue by wrapping ads around free images and free articles. They also drop cookies ten or more at a time! There are many examples. With all the free content floating around out there, it's pretty easy to create a seemingly deep website without ever speaking to another human being. Furthermore, I'm convinced that some of these sites are simply written by robots. They can disappear pretty quick, too, especially when Google sniffs out AdSense violations. Instead of sending them anymore traffic, I decided to make a Flickr Gallery.
Here are a few examples. Click on the image to see the photograph in it's original context on Flickr. The links go to screen grabs of the websites. Some of these sites are no longer online as of this writing.
Delaware DUI News Features a photograph from Police and Fire in Arizona investigating a suspicious white powder. Google ads, credit scores, background checks, and a free DUI evaluation from a local lawyer.
Environment Conversation Be sure to view this one full size and try to read it. The site doesn't seem to be up anymore. Google "navigation" ads, Google text ads, and Google picture ad box.
Globe Magazine This is a German blog, but a google translation provided complete gibberish, so I'm not even sure a person wrote it. Doesn't matter anyway. Google navigation banner, Google text and sidebar ads.
Best Environment Books Google ads and partner links to an e-commerce bookstore.
Sites that had No Ads at First, and then Suddenly Did:
A few websites were included in the first launch of the blog but were later found to be covered in ads. You can read more of these individual case studies on the original posts:
This site went over the top with both pornographic ads and content.
This site was bikinis one day, nude the next, and covered with ads shortly thereafter.
The results of my non-scientific study seem pretty clear: Big media, lawyers, and entertainment websites don't give a damn about your license, Creative Commmons or otherwise. Non profits, charities, and personal blogs seem to have no problem playing by the rules. No surprise either which sites conform to Flickr's terms with respect to linking back to the original source image. Once again, the non profits largely obeyed the link back policy, and the commercial sites usually hosted the images themselves.
"Do as I say, not as I do..."
Coming Soon: Exploring Popular Aggregators.