Wikipedia text, Creative Commons licenses and #HummingbirdGate

One of the concerns about Woolworths’ hummingbird scatter cushions is that the retailer used text from a Wikipedia article about hummingbirds as a background to the hummingbird image which attracted most of the attention in the controversy which raged over the weekend.

Woolworths Hummingbird Scatter Cushion - licensed CC BY-SA 3.0 Unported
Woolworths Hummingbird Scatter Cushion – licensed CC BY-SA 3.0 Unported

One of the concerns about Woolworths’ hummingbird scatter cushions is that the retailer used text from a Wikipedia article about hummingbirds as a background to the hummingbird image which attracted most of the attention in the controversy which raged over the weekend. As I pointed out in yesterday’s post –

As Mr Scott pointed out, this leaves the issue of Woolworths’ use of Wikipedia’s text without complying with the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported license which governs Wikipedia content use. This license requires Woolworths to do a few things in order to comply with the license which include –

  • correctly attributing the Wikipedia article the text was drawn from; and, more significantly,
  • licensing the Woolworths design “under the same, similar or a compatible license”.

Woolworths spoke to its lawyer and tweeted the following in response to a query from @WikiAfrica:

Unfortunately the lawyer Woolworths spoke to missed the real issue. This isn’t about Wikipedia owning the Woolworths design. Wikipedia doesn’t even claim ownership of the content on its site, it is all about licensing the content and complying with the relevant Creative Commons license conditions. In this case, we’re talking about the Creative Commons Attribution-ShareAlike 3.0 Unported license.

I wrote about a terrific guide to Creative Commons licenses which Ars Technica published a couple years ago and, instead of repeating what they have already written, take a look at the guide instead. The guide is titled “Creative Commons images and you: a quick guide for image users“. The key license element is the ShareAlike license element which Ars describes as follows:

The “Share Alike” attribute is intended to mimic the function of the GNU Public Licence’s “copyleft” provision, and it stipulates that anyone who creates a derivative work has to license that work under the same Creative Commons license that you used for your original work.

Because this particular clause matters only to those who plan to make new, derivative works based on Creative Commons-licensed content, it’s generally not that important for publishers, advertisers, and most end-users.

What this means is that the Woolies design, as a derivative of the Wikipedia article because it incorporates the text (the license uses the term “Adaptation” which is basically a work based on another work covered by the license), has to be licensed under the same license (I originally read a description of the license as permitting a similar license but the CC version of the overview specifies the same license). To comply with the Creative Commons Attribution-ShareAlike 3.0 Unported license attaching to the Wikipedia source text, Woolworths will have to license its design under the same license. It would also have to attribute the source of the text which is easy enough to do (the Ars guide has a great description of this process too although implementing that practically may be a little challenging just from a logistical perspective).

Of course licensing the Woolies design under a CC license has its own challenges which depend partly on the source license for other design elements (for example, the hummingbird image) and Woolies’ attitude towards releasing its design into the Commons for others to use under the license. Other than that, this is a pretty easy issue to fix.

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p>The big takeaway here is to pay attention to content licensing issues when sourcing material for your products. Sourcing material from Wikipedia is great, just comply with the license requirements. There is a wealth of Creative Commons licensed content out there which is terrific. Using that stuff requires a different mindset to the usual content licensing approach but the opportunities are inspiring.

Hypocrisy, ignorance and the #HummingbirdGate controversy

The allegation that Euodia Roets is a hypocrite for misappropriating RW Scott’s photograph as the basis for the sketch she contends Woolworths, in turn, misappropriated ignores a few important issues. First, was Ms Roets’ sketch actually an infringement of RW Scott’s photograph? Secondly, Woolworths’ failure to comply with the Creative Commons license Wikipedia applies to its content could have profound implications for Woolworths. Lastly, this debate highlights a remarkable degree of ignorance of the law in the digital marketing and creative industries.

Did Euodia Roets Infringe Copyright With Her Design?

One of the allegations doing the rounds in the midst of this controversy is that Ms Roets is a hypocrite because she has complained about Woolworths misappropriating her idea and it subsequently turned out that she draw her inspiration from RW Scott’s image. I’ve dealt with this in more detail in my post titled “A Few More Thoughts About the @Woolworths_SA #HummingbirdGate Controversy”.

The hypocrisy allegation misses the bigger point. It assumes a degree of knowledge on Ms Roets’ part that, by apparently relying on RW Scott’s photograph as the inspiration for her sketch, she was infringing his copyright in his work. As I pointed out in my previous post, to the extent Ms Roets lacked permission to create a derivative of RW Scott’s work, her sketch (which is likely still protected by copyright) probably infringes RW Scott’s copyright. RW Scott’s son, Greg Scott, commented on htxt’s blog post about this story:

My dad, R. W. Scott was the photographer of the original image. He gave me the rights to the digital image. years ago, around 1990, perhaps. I scanned his slide, edited out an overly complex background, and posted it on GregScott.Com and have given rights to use the photo for reference to many artists, provided they they don’t sell a “direct copy”, that is, that they should make creative interpretations of the image. From my perspective, I’m assuming that both works of art are licensed derivative works,and that Woolworth’s has compared two similar images and chosen one work over the other. Clearly two works derived from the same image can be legitimate, and yet have a strong resemblance.

I don’t see any wrongdoing here, except perhaps for making unwarranted accusations without adequate facts. It does bother me that people seem to assume that big business (Woolworths) is in the wrong, when they bought and paid for the image from the artist. If there are license/copyright issues here, I only see a potential concern with the Wiki text.

This would seem to address the allegation that Ms Roets’ infringed RW Scott’s copyright by creating her derivative work, namely her sketch, and undermines the allegation that Ms Roets is a hypocrite.

The Wikipedia License Issue

As Mr Scott pointed out, this leaves the issue of Woolworths’ use of Wikipedia’s text without complying with the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported license which governs Wikipedia content use. This license requires Woolworths to do a few things in order to comply with the license which include –

  • correctly attributing the Wikipedia article the text was drawn from; and, more significantly,
  • licensing the Woolworths design "under the same, similar or a compatible license”.

This means that the Woolworths cushion design should be licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported license. This license would permit anyone to share the design freely for personal use and even commercialise the design provided any versions of the design (including derivatives) are similarly licensed under this license (or a compatible one which would likely the less restrictive Creative Commons Attribution 3.0 Unported license).

This would be a pretty interesting development because it would take Woolworths’ commercial design and release it into the Commons for re-use in ways I am sure Woolworths did not anticipate. It will be interesting to see whether this product remains on the shelf or is withdrawn to guard against this occurring and to remedy Woolworths’ failure to comply with the license terms.

Ignorance

As I mentioned above, the hypocrisy allegation implies knowledge of wrongdoing on your part while complaining about being wronged. I believe a more appropriate term may be “ignorance”[1] which is remarkably common and which has emerged fairly strongly in commentary about the story. The underlying issue here is that most people are ignorant of the legal risks they face, particularly creatives, and what the law actually says. In fairness, the law is complex and evolving. That said, there is a lot of poor quality information being disseminated as authoritative and is being relied upon to make bad decisions about content and a range of other issues.

I’ve noticed a high degree of ignorance of basic legal risks at larger agencies and smaller creative studios alike. I took a look at about half a dozen large and medium-sized agencies and only one had a set of terms and conditions and a privacy policy framework. The rest have a simple and redundant copyright notice with no further provisions dealing with data protection, content licensing, liability or a range of other themes a decent legal framework is designed to address. This is likely due more to ignorance of the risks these agencies face and what is required to reduce the likelihood of those risks manifesting than a conscious decision to leave the businesses exposed to unnecessary risk.

Given that larger agencies and studios leave themselves exposed to these risks, it is not surprising that small agencies and freelancers are similarly ignorant of the risks they face, especially considering their budgetary constraints which tend to focus their attention on growing their businesses rather than delving into important, though expensive, legal frameworks.

As the saying goes, ignorance of the law is no defence although, in practice, not having many instances of agencies and design studios being sued for rights infringements which could be avoided with adequate legal frameworks leads the industry to complacency. Essentially, agency management doesn’t see the value in appropriate legal frameworks because none of the other agencies have been sued yet. Call it an ostrich strategy or a diabetic strategy, it is troubling and it is going to lead an unfortunate agency to disaster one day.

Returning to this story, perhaps Ms Roets’ critics should consider how prevalent ignorance of the law is in this industry and how many of them have taken the time to acquaint themselves with the facts and accurate representations of the law which governs their activities? It is practically an epidemic.


  1. I haven’t communicated with Ms Roets and don’t have any specific insight into her awareness of the copyright issues at all.  ↩

Excellent Ars Technica guide to Creative Commons licenses

Cc largeArs Technica (rapidly becoming one of my favorite news and information sources) has published a guide to Creative Commons licenses and Creative Commons licensed images in particular. The guide is titled “Creative Commons images and you: a quick guide for image users” –

Here at Ars we’re big fans of Creative Commons, both the idea behind it and the work that gets produced. As publishers, we benefit from Creative Commons in a number of ways—we look things up in Creative Commons-licensed Wikipedia (used with caution, of course), the Creative Commons-related policy issues that we cover give us a steady stream of great news content, and we make use of Creative Commons-licensed images in our news stories.

This last piece—the use of Creative Commons images—has historically been one of the trickiest issues for us to navigate as a publisher, given the number of different Creative Commons license types. Each Creative Commons license has its own set of restrictions, and, despite the fact that the license clauses seem fairly clear on the surface, it’s not always obvious to us as end users what can be used where and for what purposes.

One of the most common copyright issues I have come across is copyright infringement through improper image use. People often tend to assume that because images are available online, they are freely available for their intended uses. This isn’t always the case at all. As with most other forms of content, images found online are subject to their author’s or licensee’s copyright and permissible uses are restricted depending on the copyright owner’s preferences. In other words, when you find images online you should assume that you need permission for most uses and that permission is usually given in the form of a license.

These licenses can be custom worded licenses (licenses in website terms and conditions tend to be good illustrations of these sorts of custom licenses) or they can be any one of a number of standard form licenses. Creative Commons licenses are freely available standard form licenses. The Ars Technica guide is an introduction to Creative Commons licenses and how to find appropriately licensed content. This will be particularly useful for bloggers and marketers so it is worth reading and even bookmarking the guide for later reference.

On a related note, if you are familiar with Creative Commons licenses, generally, you may also know that these licenses are localized for various countries and regions, including South Africa. If you are in South Africa and want to license your content using a Creative Commons license, consider using the South African version of the license. Its terminology has been adapted for South African law. You can pick a localized version of the license when you choose your license features:

Choose a CC License

Looking to the left of copyright

I just watched a terrific video interview with Neil Gaiman in which he talks about his experiences with what some may consider piracy on the Web. His story is not new to me and a number of popular authors and artists have had similar experiences including Paulo Coehlo and Nine Inch Nails. The story is usually about an author or artist who releases his or her works on to the Web under a liberal licensing scheme or comes across pirated copies of those works on the Web. The result is often counter-intuitive: an increase in sales and popularity.

As an author or artist your work is your livelihood and the conservative approach is to restrict access to the work by reserving all rights under copyright law and clamping down on infringements. There is a lot of merit in this approach, for sure, but there are also a number of opportunities for those creators who are courageous enough to try something a little more open. Options include using Creative Commons licenses, more accessible purchase options and pricing strategies. I found Gaiman’s experiences in Russia to be particularly interesting. If I remember correctly, Coehlo had a similar experience in Russia, a country associated with music piracy websites and a disregard for copyright law.

Copyright law was originally and is still intended to foster creativity. What we find, in practice, is that Big Media (my term for the international music and movie industry) is engaged in a cold war against new business models and copyright infringers and, almost in keeping with George W Bush-style rhetoric, have made the choice consumers have one between supporting an aging and increasingly ineffective business model and supporting the “terrorists” (these people may be actual terrorists or something similar from Big Media’s perspective). Copyright law is currently being used to stifle creativity, frustrate consumers from legitimately purchasing content they want (the licensing limitations on music, movies, tv series and books which we see through iTunes Store and Kindle books availability is a manifestation of this approach) and manipulate governments to implement draconian penalties through draft treaties like ACTA.

This is not an argument against copyright law but rather its application by vested interests that are often at odds with creators’ interests. Content creators would do themselves a disservice by not exploring alternatives to the conventional model (sign with a label, publisher or equivalent body) and making informed decisions about what would be in their best interests as creators and business people. Rather than being intent on stealing content at the first opportunity as Big Media would have us believe consumers are (this characterization sounds a lot like racist rhetoric we have come across in South Africa), I firmly believe that consumers want to pay for content but it has to be at a reasonable price and through a convenient outlet. In the case of music, movies and tv series, that tends to be downloads for many people. When it comes to books, it is increasingly ebooks from Amazon or elsewhere. Those consumers are who this content is intended for.

So called copyleft options make content more accessible consumers. Think about it.

Presentation on alternative licensing options for synch music deals

I was invited to participate in a panel discussion and make a presentation regarding a licensing framework known in the music industry as “music synch licensing” at the Moshito Music Conference underway at the Museum Africa in Newtown, Johannesburg. What is this framework about? Well chances are you encounter this form of licensing in action all the time when you watch TV and movies:

A music synchronization license – or sync license, for short – is a music license that allows the license holder to “sync” music to some kind of media output. Often sync licenses are used for TV shows and movies, but any kind of visual paired with sound requires a sync license. (Source: About.com)

It is basically a licensing framework that is used when you have music in a TV show, movie or even ads. It is also potentially a relatively complex licensing framework which made my presentation topic particularly interesting. I was asked to focus on alternative licensing options in the context of music synch licenses and here are my presentation slides:

It is a fascinating aspect of the music industry and a potentially lucrative one if you create a work that is in big demand for this sort of use. Music licensing, generally, can be a complex process to navigate with a number of possible rights holders for aspects of a song, all of whom may need to agree to the song’s intended license. Add to that associations like SAMRO and NORM which collect and pay certain types of royalties to copyright owners and it is easy to see how important lawyers become in this industry.