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The Creative Commons (CC) – an Alternative to ©?

On behalf of Stephanie R. Cooper, PC July 9, 2015

What Is Creative Commons?

Creative Commons (CC) is a non-profit organization that provides template agreements allowing for a standardized copyright exchange that functions more quickly than the conventional copyright model. CC licenses are free, intuitive and “encourage an internet-focused, free-flowing exchange of ideas.” Wikipedia, the online encyclopedia, and Flickr, the online photo album site, are two of the many websites using CC licenses. Where copyrights can be tedious and legally complex, CC seeks to “mitigate the barrier imposed by current Copyright law.”


  1. Simple to read – The applicant does not need a $100,000 law school education to understand what rights are being granted.

  2. Author Credit – The author of the work automatically receives credit (i.e., the default CC license). By contrast, United States copyright law does not grant an author the right to be credited automatically as the author of a work.

  3. Perpetual Use – Creating a CC license means that the use for which the author registers is granted freely, indefinitely and indiscriminately.

  4. Optimized for Search Engines – CC-licensed works are easily identifiable by the major search engines.

A professor may find CC licenses to be particularly attractive. The freedom to search the Internet to find and use CC works could have limitless potential for a classroom. Removing the nuisance of having to contact the creator in order to receive “permission” in the classical sense has obvious benefits. In addition, there is no financial cost to using a CC-licensed work. The risk of litigation, therefore, is seriously diminished.


An artist may find the CC license to be financially destructive. Where a professor has a “day job” with an income that does not rely directly on the use of a creative work, many artists are financially dependent on licensing fees.

Although seductive at first glance, CC licenses are not without serious deficiencies. For example, once an author creates a license, she cannot then change it at a later date. Once an author has unleashed her CC-protected work on the Internet, derivatives of that work will proliferate, and stopping the circulation would be a Herculean task. Moreover, the chances for remuneration in this context are slim. Thus, the idea behind CC licenses – to allow for the efficient exchange of ideas – is utopian but not lucrative. If the goal is to promote an artist and to have that segué to the purchase of the artist’s other works, then the CC license is beneficial. This strategy is often attractive to up and coming musicians, who release an album for no charge but have their fans pay for a show. By allowing broad dissemination CC licenses serve as effective publicity tools.

Recently, Elon Musk released CC-licensed photographs of his Space travel/ hauling/ transportation company. Clearly, Mr. Musk has other interests than making money from these photographs.

Countervailing Opinions

A glance at the writings of Lawrence Lessig and Mark Helprin help to illustrate the counter­vailing opinions with regard to CC licenses. These fellows occupy opposite ends of the spectrum when it comes to Copyright Protection and Fair Use. In his Wall Street Journal piece, “Copyright Critics Rationalize Theft,” Helprin leaves no ambiguity as to his beliefs. He expresses the irony he sees in the concept underlying the CC: The big backers of CC, like Google and Yahoo, all benefit enormously when there is no need for permissions and compensation. It is not hard to imagine why a company like Google, the nerve center for most Internet experiences, does not want a barrier to the use of its search engine and the content it retrieves. Helprin notes that these companies are also those most engaged in Intellectual Property litigation, going to great lengths to protect company patents and the “brand.”

“Freeing” a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit from, for example, “The Garden Party,” while the descendants of Katherine Mansfield will not.

On the other hand, Lawrence Lessig, a law professor and a co-founder of CC, has a populist take on the value of easy-to-read copyright licenses. In response to a question regarding why he helped to create CC Lessig stated, “We thought it was really important to understand your own licenses; it was very important to begin to embed an architecture that could be, number one, human-readable, understandable, and, number two, machine-readable, and, number three, at the very bottom, legally enforceable.” Lessig sees faulty logic behind extensive copyright protection, which often lasts for 70 years or more. Lessig and other proponents of CC argue that extensions do not actually incentivize creators to produce more work. The assurance that an artist’s great grandchildren will receive royalties after his death probably has no real influence on the quantity and quality of works the artist will create.

No matter what kind of license you choose to issue, whether it be CC or copyright, an author still must be vigilant to prevent misappropriation of her creations. Because the vast majority of CC licenses are non-commercial, the artist must be aware that she is allowing her licensees to copy, distribute, display and perform her work for endeavors generating no profits (i.e., usually for educational purposes).

The inherent irony here is that CC licensors are creators who want to share their work freely with everyone – but not when any or everyone else stands to make money from the use of that work. This conflict seems to carry with it a conflict between the mission of CC7and its function in practice thus far. Some would even argue that the non-commercial use restrictions that characterize most CC licenses mirror the restrictions existing within U.S. Copyright Law.