Photo by Scott Bourne – Attribution-NonCommercial-NoDerivs Creative Commons

NOTE: This post was written based on my experience as a US citizen doing business from the United States. If you are not a US resident, much of the information in this post may not apply to you so consult legal help in your area to get the most accurate information.

More than a year ago my pal Trey Ratcliff influenced me (not directly but subtly through his actions and his blog posts) to switch to a Creative Commons license for my work. Up until that point, most of my work (other than stock) had been completely rights managed or some variation thereof.

I wrote about this decision here:

I’ve had enough time to do the accounting and have my results which I will get to in a minute. But first I want to just give you the executive version of what’s led me to this point.

Trey’s making big bucks using CC. His position is that the big companies won’t steal from you and the little ones don’t have the money to pay you anyway so why worry about it? He says the added exposure he gets is worth the occasional theft of his intellectual property by people who are probably judgment proof. On its face it makes sense, but dig deeper and it gets more complicated.

I happen to know that Trey makes lots of money using his approach. I made lots of money using my rights managed approach. But there’s no denying the rights managed model is in trouble. It’s harder and harder to make a living that way because so many people are willing to give their work away for free. Photographers are their own worst enemy. When it comes to business they have allowed themselves and their work to become a commodity. That is a path to failure. But it looks like it’s the path we’re on because the current generation of emerging pros doesn’t care or isn’t smart enough to figure this out.

Now as for my own profit/loss for the year I tested CC:

While my numbers year over year were declining recently at a rate of about six to seven percent, (mostly because I was slowing down and working less by choice but to a smaller degree impacted by the bad economy) my results after the switch to CC were horrific by comparison. I made 52.3% less money while using CC than I did in my rights managed approach. This is not a scientific test. To know whether or not the opposite would be true, i.e., if Trey would make more using rights managed than he does CC, Trey would have to agree to try that for a year and I don’t see that happening.

All I know is that for me, Scott Bourne, switching to CC cost me a bunch of money.

Now let’s look at some of the factors that might have contributed to my CC failure. First, I am not nearly as cool as Trey. And I think for CC to work you absolutely have to have some serious notoriety. Secondly, I worked less this year than last so I did already adjust the profit and loss statements to reflect that and STILL came up 52.3% worse off. I also don’t post the volume of images that Trey does. In fact, since I am so used to being infringed, I rarely post more than 10% of my salable images online. I heard the mantra too many times “If you don’t want your images stolen – don’t put them online.” Okay – I heeded that advice. 90% of my work is NOT online and never will be. But maybe to make CC work you need more images online than I was comfortable with, so I give that some weight in why I wasn’t successful.

I think genre might also be part of the equation. Trey posts mostly pictures of beautiful places from all over the world. I do cars and wildlife. Perhaps the genre makes a difference. Style could also be an issue. Trey uses lots of HDR. While photographers in the local camera club may have grand mal seizure over your use of HDR, buyers couldn’t care less. Photo buyers love the stuff and Trey is the master of HDR so maybe that gave him a leg up.

Lastly, Trey has been at the CC thing longer than me. Maybe a year wasn’t enough time.

In any event, I consider the experiment a failure. And if I weren’t retiring from assignment work in November I’d switch back to rights managed. But now it seems a moot point. I’ll finish out my career with CC just to see if it ends up helping giving things more time.

Now about Trey’s theory that the big guys will do the right thing and pay you so you don’t need to worry about them…

Well I happen to know that even Trey had to go after at least one big fish for stealing his work, and in the time frame that I’ve been offering my images under a CC license, I’ve had to go after four. So it’s not necessarily true that the big companies will do the right thing. They’ve gotten complacent about image theft and most photographers don’t seem to mind. So the fox goes into the hen house as often as he likes and takes as many chickens as he can eat and doesn’t seem to feel obligated to pay. And if caught, the big companies have so many lawyers they don’t mind taking the case to court, figuring the average photographer won’t have the resources to do anything about it.

So here comes the sticky part. CC is just a license. It is NOT a replacement or substitute for Copyright registration. If you offer your images under CC and someone infringes you, your next remedy is to sue for Copyright infringement in the U.S. District Court. But if you haven’t registered your images with the Library of Congress, then it’s effectively, nearly impossible to recover money damages from the defendants.

CC has accordingly become a bandaid on a cancer. The cancer still grows, and the bandaid may make it feel better, but without the protection of Copyright registration, the cancer will kill the host.

So what should your takeaway be from all this? If you’re an amateur with no interest in licensing your photos, it has no impact on you. If you’re trying to make a living at this, register your images with the Library of Congress and use whatever approach makes sense for your business. By all means hire an attorney to find out what your rights and responsibilities are BEFORE you are infringed. And as always, be ready for what comes next. This is an evolving world. It is a world of entitlement and to some degree mediocrity. Professional photographers will have to evolve their business models to match the buying models of their customers or the business will die. I am glad that my time is nearly up because the waters up ahead look pretty choppy to me.


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