David Oxenford 2021

Online content creators at radio stations expecting a “creative commons” license to shield them from a copyright infringement lawsuit would be wise to pay attention to a recent court decision highlighted by broadcast attorney David Oxenford. “Relying on the creative commons license can be perilous,” Oxenford warns in a blog post on the Broadcast Law Blog.

At issue in the case cited are photos of Willie Nelson and Carlos Santana that were freely available on a creative commons website. But when they were posted on a news website as part of stories about the acclaimed musicians, there was allegedly no photographer credit and no link to the photographer’s own site, which were preconditions to the creative commons license. Since the news site failed to follow the terms of the creative commons website, the court found that the license was not effective.

And just because the photos were widely available on internet didn’t make the news site any less vulnerable to a copyright infringement claim. “Relying on a creative commons license without scrupulous attention to any license requirements can lead to legal actions like the one brought here,” Oxenford warns. “In fact, the decision suggested that this was not the first lawsuit brought by this photographer, and as we’ve seen in past cases, there is no shortage of other photographers ready to make claims against those who use their work without an effective license.”

The defendants’ argument that they generated hardly any ad revenue from using the photos – $10 for the Nelson photo, $3 for Santana – didn’t hold any legal water. And the suit claimed that the photographer typically would make only a few thousand dollars when selling a photo, which Oxenford notes is far less than the legal costs of filing a suit such as this. So why would the photographer bother with incurring significant legal fees? “[M]ore than likely it is the potential for statutory damages that fuels suits like this one – damages that can be as much as $150,000 per infringed work, even without any proof of any actual damages,” he responds.

And while damages in this case aren’t likely to be that high – Oxenford notes that the news site’s owner didn’t realize the photos were posted without obtaining all necessary permissions, something the court typically considers – the infringer still has to pay his attorney’s fees and may see his insurance premiums go up.

Another lesson from the case: Don’t expect any advance notice that you’re violating the photographer’s copyright in advance. While many erroneously believe that there is no liability if a site removes a photo once informed of infringing activity, Oxenford points out that the copyright owner can sue without any prior warning to the unauthorized user.

“Anyone with a website should read this decision, as it addresses in detail not only the issues with these creative commons licenses, but also many of the other legal issues that arise in lawsuits about the unauthorized use of photos,” Oxenford writes.