Flickr, stock photography and Creative Commons

Indian fruits (by Mathias Klang)

In recent years Flickr has been one of the best examples of user-generated content, billions of pictures uploaded by people all over the world, usually available under a Creative Commons licence. It is because of the sheer volume of content that Flickr has also become one of the most visible showcases of CC licensing in practice (together with Wikipedia). Whenever I try to explain Creative Commons to a new audience, these are the two examples that people understand the most.

There have been various cases where pictures from Flickr have been used by the mainstream media, and the site is becoming a bit mainstream as well, with wider recognition that this is an invaluable resource that perfectly exemplifies the best of the Internet as a common repository of content. However, the Flickr community is about to face a monumental change, and it is difficult to know what will be the result of this shift. Getty Images, the stock photography giant, has decided to tap into the great resource offered by Flickr, and has announced that it will be using pictures taken by the community to offer realistic and authentic pictures that will act as an antidote to stock photography that is “too fake”.

I have to say that Getty’s Flickr portfolio looks amazing, they seem to have picked some astounding Flickr pictures ranging from the whimsical to the breathtaking. But how does the deal work? Users will be able to submit their pictures to the Getty collection in two ways, by joining the Flickr Getty Group, or by turning on a new licensing option called “Request to License“, which will alert Getty editors that you are willing to play ball. What happens next depends on each case. If a Getty editor likes a picture, an offer will be made to the account holder and it will eventually be added to the Getty collection, and therefore it can be licensed to Getty customers. The BBC reports that the pictures will probably sell at around $150-$240 USD, and Getty will reportedly get a 80% cut. There are two tiers of Getty licensing, rights-managed and royalty-free. The former are premium content, offered under exclusive deals, and therefore are more expensive. The latter are cheaper, offered under less restrictive conditions, and allow unlimited uses for the customer, but are non-exclusive, so they could “end up in your competitor’s billboards”.

Getty’s recognition of user-generated power can only be a good thing, can it? Well, not everyone seems happy. I can imagine that professional photographers will probably not be too pleased about the further erosion of their competitive power. The British Journal of Photography quotes John Toner, freelance organiser at the National Union of Journalists:

“We would be seriously concerned that this could be an attempt to exploit amateur photographers. Amateurs are not necessarily au fait with the value of their images, and could be persuaded to license them to Getty for low rates, thereby undermining the rates that professionals work so hard to achieve.”

The community itself seems to be divided as well. This opinion seems typical of how many in the Flickr community feel about the deal:

“Personally, I think this is a bogus arrangement/deal, and that Getty should split the deal 50-50 with the photographer for any images licensed this way. Heck, make it 40-60 — or better!
As others have said (or implied) before me, Getty isn’t even doing anything to earn their 70-80% with this set-up; they’re just skimming all of that away from the photographer without having to lift a finger (or press a shutter)!
As a participant in the Flickr-Getty Collection as it has functioned until now, I am disappointed that they would attempt this kind of a ‘takeover’ of the ENTIRE Flickr-verse without giving the actual image creators a much better deal..”

This seems to be going beyond the persistently grumpy Internet users complaining about the loss of innocence of their little idyllic patch of cyberspace, there seems to be real anger at some of the terms of the agreement. And then there is of course the touchy question of the very large amount of content that is offered under a Creative Commons licence.

In the FAQ that explains the new arrangements, Getty answers the question of Creative Commons interaction:

“Can I license my Creative Commons content?
There is a chance one of your Creative Commons-licensed photos may catch the eye of a perceptive Getty Images editor. You are welcome to upload these into the Flickr collection on Getty Images, but your contract requires that all images you place with Getty Images be licensed exclusively through them. So, if you proceed with your submission, switching your license to All Rights Reserved (on Flickr) will happen automatically. Any image selected to be part of the Flickr Collection on Getty Images that had been in Creative Commons will automatically be designated for Royalty-Free licensing.

If you’re not cool with that, that’s ok. It just means that particular photo will need to stay out of the Flickr collection on Getty Images.”

There are of course several questions about this. Is this legal? Does this violate existing Creative Commons licensing practices? Well, no, this is legally sound, but perhaps ethically suspect. Allow me to elaborate.

One of the questions I have heard asked in light of this deal is that Creative Commons licences are irrevocable (CC calls it non-revocable, I never really understood the difference). This is because the licence grant states that:

“License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work” [… italics mine]

What this means is that whenever you licence something with Creative Commons, and as long as the licensee fulfils the terms of the licence, they can continue using the work in perpetuity, or in practical terms, until the copyright expires. Does this mean that you cannot change your mind? No, it only means that once a licensee is using the work, their right to use the work cannot be revoked. CC explains it better here:

“What if I change my mind?
This is an extremely important point for you to consider. Creative Commons licenses are non-revocable. This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop offering your work under a Creative Commons license at any time you wish; but this will not affect the rights associated with any copies of your work already in circulation under a Creative Commons license. So you need to think carefully when choosing a Creative Commons license to make sure that you are happy for people to be using your work consistent with the terms of the license, even if you later stop distributing your work.”

Let’s use this blog as an example, which is licensed under a Creative Commons licence. Imagine a teacher finds my posts exceptionally insightful and witty (why wouldn’t they?) and decides to take some of the content, put it together into a collection of TechnoLlama’s Greatest Hits, make them into a pdf file and distribute them to their students under the same licence. They are entitled to do all of these things under the terms of the CC licence. Now imagine one day I decide that all of this free culture stuff is just not worth it, it is time to make the blog pay, damnit, and change the terms of the blog to make it “All Rights Reserved” in order to turn the entire blog into a book. While I have closed the blog for future users, those who have already re-used the content can continue to do so. Moreover, the hypothetical teacher can continue distributing the pdf of “TechnoLlama’s Greatest Hits” online, as long as it is done non-commercially and it is shared using the same licence. This is what non-revocable means. Will that pdf compete with my book? Sure it will, but that was the risk I took when I licensed under a CC licence.

The reason for the non-revocable nature of the licences is one of security for licensees. It would be difficult to use any CC content if I thought that the content acquired under good faith could be revoked by the creator at any moment and without notice.

So, what about Flickr and Getty images? Something similar is happening. Flickr allows you to change your licence at any time from CC to “All Rights Reserved”. Getty will not accept any content under a CC licence, which makes sense when you think about it, as it is not in their best commercial interest to offer stock photographs that are competing with free versions. If an image was under a CC licence and it is being uploaded to the Getty collection, then it will automatically be changed to “All Rights Reserved”, and it will lose its CC status. What happens is that previous users will retain the rights to the image they have already acquired. So, let’s say the image I am using above was to be entered into the Getty collection, I would still be able to use it because it was licensed under a CC licence when I posted it here.

So far so clear (I hope). Why is Getty taking a risk with pictures that might be “in the wild” so to speak? My guess is that there is safety in numbers. How will most Getty customers know that there is a CC-licensed version of the picture they are purchasing? This is the reason why Getty will make pictures formerly under a CC licence available only under  royalty-free licensing. The reason is one of exclusivity, they may not be able to guarantee exclusive use of the photograph, so the result will be a cheaper picture.

This is where the ethical and practical implications take place. I am not really too concerned about the Getty collection, I really think that this is a good development. However, I am concerned about the potential negative impact on the take-up of CC licences in Flickr. By stating clearly that any CC licensed picture will be only eligible for the cheaper royalty-free licensing option, Getty has created a disincentive to licence under Creative Commons. While I give the Flickr community enough credit not to answer the siren’s call en masse, this could be a concern on the long run. We could have a two-tier Flickerverse of low-quality CC-licensed images, and high-quality content available only by paying fees to Getty.

I do not think that we have heard the last of this debate, and it will be interesting to see what happens in the near future.