So the other day I got the following e-mail:

Hi Vidiot,

I am writing to let you know that six of your photos with a
creative commons license have been short-listed for
inclusion in our Schmap New York Guide, to be published
late March 2006.

Clicking this link (redacted -- Ed.) will take you to a page where you can:
i) See which of your photos have been short-listed
ii) Submit or withdraw your photos from our final selection
phase
iii) Learn how we credit photos in our Schmap Guides
iv) Download and preview a sample Schmap Guide.

This is flattering -- it's always exciting when someone notices something you've created, and wants to use it.  But looking at their terms of service and learning more about the site made my antennae go up.  Schmap is not proposing, as best as I can tell, to use my photos under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike license (under which terms I've made all my photos available to the public.)  And, if they were using that CC license, they actually wouldn't need to contact me at all; I've already given blanket permission for noncommercial use, providing that they attribute the source of my images and that derivative works made from my images be distributed under the same CC license.

Rather, Schmap is proposing to use my photos in a commercial context:  the city guides that they're distributing are free, but will be ad-supported.  And Schmap is presumably a for-profit company.  They indicate that, should I give them permission to use the photos the way they want to, that they'll credit the photos, link back to their original pages on Flickr, and link to the CC license page that I've put on these photos as well.  As attribution goes, this is fine.

So what does the Creative Commons license have to do with Schmap's proposed use?  None, that I can see -- unless they're looking for photographers on Flickr who are amenable to unconventional licensing, or who haven't thought that clearly about their rights.  Because, as Joe Gratz points out, they're basically looking for a pool of free images that they can then repurpose and make money from:

This strikes me as an exceedingly smart way to develop a pool of free urban photography. Rather than plunging forward and planning to brush off infringement claims from small-time Creative Commons licensors, they decided to ask permission, trusting that photographers’ egos will lead them to grant it.

They're using Creative Commons licenses as a search tool, not as licenses to use copyrighted content.

(Incidentally, if you follow that link above, Gratz has copied the "Terms of Submission" that Schmap asks you to agree to before they use your images.)  A commenter on that post, Adam Fields, charges that Schmap is "taking advantage of the commons", and a pretty good discussion has ensued there.  (It's also being discussed at FlickrCentral.)

Schmap realizes that this is not a proposed use of my photos that falls under the Creative Commons license, which is why they're asking my permission.  (And, I'm glad that they are.  It's really no fun to have to chase down people who aren't willing to abide by licenses or who are infringing my rights.)  But they've also gotta realize that for some photographers, asking to use their photos outside the terms of their Creative Commons licenses, for no consideration, is going to be a tough sell.

So, in that light, I've written back to the Managing Editor of Schmap's guides, letting them know that I'm not comfortable to let my copyrighted images be used in a commercial context for free, and asking what compensation they think is fair.  I'm also asking them exactly what rights they'd be interested in licensing (non-exclusive/exclusive, worldwide/territorial, print/online, credit/attribution, et cetera.)  Hopefully they'll get back to me soon.

ADDENDUM:  I figured I might as well show you which images Schmap is proposing to use:

UPDATE:  I heard back from Alexandra Moss, the Managing Editor of Schmap's guides.  She writes:

The question of 'commercial' or 'non-commercial' seems to be not so well defined, which is why we have asked individual photographers to submit or withdraw their photos, based on an understanding of our usage.

Some consider usage to be primarily non-commercial if the resulting product/service is free to its end-users, while other short-listed photographers consider our usage 'commercial', but decide to submit their photos nevertheless.

A small number of short-listed photographers (around 5% to date) have decided to withdraw their photos, though not always because they consider our usage commercial (some, for instance, withdraw because they are not pleased themselves with the particular photos we have short-listed, or because our Schmap Player is not yet Mac compatible).

Your photos are great-- I'd love to use them, but I'm unfortunately unable to negotiate non-standard terms with specific short-listed photographers.

So there it ends; I wrote back and said that since Schmap isn't interested in licensing my photos (i.e., compensating me for their use of something that is of evident value to them), I'm withdrawing them from consideration of being included in their guides.  I reminded Schmap that I reserve all rights to my photos, other than the rights specifically granted by the Creative Commons license, and that I consider Schmap's proposed use of the photos to be a commercial use...and thus outside the scope of the CC license.

I do want to say that this generally doesn't leave a bad taste in my mouth -- Ms. Moss was professional, cordial, and not defensive when I questioned their use of the photos.  And kudos to her for engaging in the FlickrCentral thread discussing Schmap's efforts.

One observation, though:  I think Schmap is being ever-so-slightly disingenuous in implying that the definition of "commercial" vs. "non-commercial" is up in the air.  I would much rather that Schmap said up front, "we're a commercial enterprise, we're publishing these guides as a for-profit, money-making venture, and we request permission to use your copyrighted images."  It seems to me that Schmap is trying to capitalize on confusion (or even create it) regarding the scope of Creative Commons licenses, and use that confusion to acquire content without having to pay for it. 

As I noted above, Schmap's proposed use doesn't qualify as a legit use under the Creative Commons license I've chosen.  Despite Schmap's saying that the question of commerciality is undefined, this strikes me as a wholly commercial use.  And, Schmap is not going to distribute its guides under a Creative Commons license, thereby not following the terms of the ShareAlike license.

Comments

[muckster]

Very interesting. I'm using the same license on Flickr, and I always wonder about the potential for abuse. It's just too good a resource for people not to snatch the occasional picture & hope nobody notices. Now, why won't anybody ask *me* to Schmap my pictures...?

[thommy saraceno]

i wasn't asked for permission to use my photo. They just used it in the boston city guide and "informed" me. I wouldn't be so bent out of shape if it was a mundane shot. the one they chose to use was a picture of my engagement. Not something i want co-opted for commercial use. I've yet to hear back from them.

[Kim Scarborough]

A nit-pick: you've licensed those photos under the 2.0 license, not 2.5. So you're linking to the wrong licenses.

[Caitlin Burke]

"They're using Creative Commons licenses as a search tool, not as licenses to use copyrighted content."

Yes.

The cheap rationale about "depends on the definition of commercial" is completely irritating. Schmap needs to get real - it is clearly trying to build a business here, and do it with free images.

Yes, they're perfect nice in their emails, but they are, as you say, disingenuous, and it definitely leaves a bad taste in my mouth.

[music]

very interesting.
i'm adding in RSS Reader

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