One might think that using properly licensed material would guarantee insulation from a copyright infringement lawsuit. Apparently not. At least not for Kappa Map Group’s recent use of material per a Creative Commons license.
Background of Creative Commons License Dispute in Drauglis v. Kappa Map Group
Kappa Map Group is a Pennsylvania-based publisher of maps and atlases. In July 2012, Kappa Map published an atlas entitled “Montgomery Co., Maryland Street Atlas”. The front cover of the atlas features a photograph of the Montgomery county landscape (presumably) entitled “Swain’s Lock”.
Kappa Map obtained the Swain’s Lock photograph from the online photo-sharing site, Flickr. The photographer, Art Drauglis, had uploaded the photograph to his Flickr account and selected the option of making the photograph available to others under the terms of a Creative Commons Attribution-Share Alike License.
What Is a Creative Commons License
Creative Commons is a non-profit organization offering free license documentation that copyright owners can implement to make their works available for use by others. When using material under a Creative Commons license, one need not pay a fee nor obtain direct permission from the licensor as long as one follows the terms of the license.
There are numerous forms of Creative Commons licenses. While all Creative Commons licenses do not permit commercial use, the Attribution-Share Alike license selected by Drauglis for the Swain’s Lock photo does.
Photographer Sues Kappa Map Group on Creative Commons Technicalities
As permitted by the Creative Commons Attribution Share-Alike license, Kappa Map used the Swain’s Lock photograph without notifying the photographer and without specifically asking him for permission. When the photographer learned that his photo adorned the front cover of the Montgomery Co., Maryland Street Atlas, he filed a copyright infringement lawsuit against Kappa Map.
The photographer did not dispute that he published the photograph under a Creative Commons license that authorized commercial use. Instead, he argued that Kappa Map’s use was beyond the scope of the license. Ultimately, the court concluded that Kappa Map’s use was indeed within the scope of the Creative Commons license and that the use was not infringing. In reaching that conclusion, the court rejected the following three technical arguments presented by the photographer:
Free Distribution of Atlas. The photographer argued that Kappa Map did not distribute the atlas for free as required by the license (the “ShareAlike Requirement”). The court found that the ShareAlike requirement applied only to derivative works of licensed material. According to the court, while the atlas included the photograph, the atlas was not a derivative work of the photograph. Therefore, the ShareAlike Requirement did not apply to the atlas and it was fine for Kappa Map to charge a monetary fee for the atlas.
Adequate License Information. The photographer argued that the Kappa Map atlas did not include adequate information about the Creative Commons license since Kappa Map did not print the url to the license on the atlas. The court disagreed determining that inclusion of a url was not mandatory and that Kappa Map satisfied the information requirement by including on the atlas back cover the notation - Creative Commoms [sic], CC-BY-SA-2.0 – which contained the license’s uniform resource name.
Proper Attribution for Photographer. The photographer argued that Kappa Map did not provide proper attribution for the photograph. The license requires that Kappa Map provide authorship credit in a manner comparable to and as prominent as credit provided on the atlas for materials comparable to the photograph. Credit for the photograph appeared on the back cover of the atlas in 7-8 point type as follows:
Photo: Swain’s Lock, Montgomery Co., MD
Photographer: Carly Lesser & Art Drauglis, Creative Commoms [sic], CC-BY-SA-2.0
The photographer argued that the material comparable to the Swain’s Lock photo was the entire 112-page atlas. Copyright notice for the entire 112-page atlas was on the first page of the atlas and was in at least 10 point type. The court found that the material comparable to the Swain’s Lock photo was not the entire 112-page atlas; but instead each individual map. The credit for each individual map was a bottom-of-the-page notation of “© Kappa Map Group, LLC”. The court concluded that the back cover credit given for the photograph was comparable to and as prominent as the individual map credit.
Lessons To Be Learned by Licensors and Licensees
Creative Commons Materials Are Not Risk-Free. While I view being sued by a Creative License licensor as a rarity, the other risks associated with Creative License materials are much more likely to emerge.
Read the Fine Print When Uploading Your Material to Websites and Social Media Networks. If you care about how the material is used, don’t just blindly accept the terms without understanding their impact – which is what the photographer of Swain’s Lock seems to have done when uploading the image to Flickr. Not all online postings provide the option or requirement of granting a Creative Commons license. However, as I discuss here and here, posting to social media sites such as Twitter and Facebook typically entails granting broad non-exclusive rights to the social media website to use your material (although users of the social media site don’t always have corresponding carte blanche to use your material).
Understanding and Complying with License Terms Is Important. While this is true of all licenses, perhaps it is more true for Creative Commons licenses since all licensors might not fully understand the rights they are granting and might challenge licensees on technicalities. From my reading of the Kappa Map court opinion, it seems that Kappa Map’s actions were certainly within the spirit and made with the intent of full compliance with the Creative Commons license. Fortunately for Kappa Map, the court found the company to be in full compliance with all the technical minutiae of the license. Other licensees might not be as diligent – or as lucky.
Sometimes a Paid-For License Is Less Expensive Than a Free License. Using Creative Commons material is attractive because use is free and requires no direct permission from the licensor. But sometimes “free” results in substantial expense. Even though Kappa Map prevailed in the copyright infringement lawsuit, the company’s use of the Swain’s Lock photo resulted in fourteen months of litigation. The Copyright Act allows the prevailing party in a copyright infringement lawsuit to seek payment of its attorneys’ fees and costs by the other party. Courts have discretion in granting such awards. Kappa Map asked for but was not granted an award of attorney’s fees and costs.
The case is Drauglis v. Kappa Map Grp., LLC, No. 14-1043 (ABJ) (D.D.C., 2015). As of the writing of this post, the Swain’s Lock photo can be viewed here and the Kappa Map Group atlas cover featuring the Swain’s Lock photograph can be viewed here.