Copyright infringement is commonplace in our industry. With the advent of Google and image searching, added with ignorance of the public, “accidentally” using a photographer’s photograph without permission or compensation happens too often to keep up with. Sometimes you’ll hear about a big lawsuit where a major corporation (that should know better) uses a photographer’s image without attribution or permission. More often than not, there’s a settlement in the photographer’s favor. Not in this case.
An image was taken in Maryland by photographer Art Dragulis and uploaded to Flickr. A few years later, Dragulis discovered that Kappa Map Group had used his image commercially on the cover of their atlas (they still make those?). Dragulis filed a lawsuit claiming copyright infringement against the company for using his image without permission.
In the court documents, Dragulis accuses Kappa Map Group of copying his “work and [making] derivatives of the work without [his] authorization in violation of 17 U.S.C. § 501.” Id. ¶ 22.” But the document points out that the photographer “did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation.”
Because Dragulis licensed the photo under Creative Commons BY-SA-2.0, which states that under the Attribution-ShareAlike license, he gave blanket permission for users to:
- Share — copy and redistribute the material in any medium or format
- Adapt — remix, transform, and build upon the material for any purpose, even commercially.
As long as the user gives proper attribution (i.e. “appropriate credit, provide a link to the license, and indicate if changes were made.”) and if the user changes or adds to the image, [they] must distribute [their] contributions under the same license as the original,” there are no additional restrictions. The court documents that Kappa Maps did attribute Drauglis on the back cover of the atlas with, “Photo: Swain’s Lock, Montgomery Co., MD; Photographer: Carly Lesser & Art Drauglis, Creative Commons, CC-BY-SA-2.0.”
Since Kappa Map Group complied with the licensing agreement that Drauglis chose under the Creative Commons license, the only thing for the court to decide upon was if Kappa was compliant with the “technical terms of the license under which plaintiff published the work. The Court finds that it did.” The court further found that Kappa did not violate the “ShareAlike” agreement of the CC license as the atlas is not a derivative work. You can see the full filing here.
This case is a good reminder to read what you are agreeing to when it comes to sharing your work online and making sure you understand your own licensing before ending up with some costly lawyer fees. To read more about the Creative Commons License and how to choose the right one for you, check out this article.