Digital Sourcing and Remixing: A Guide for the Public and Cultural Institutions on Creative Commons Licenses

November 6, 2023

By Murphy Yanbing Chen

Introduction—Copyright and Creative Commons Licensing

Where does creativity come from? Like the legal principle of stare decisis, many artistic creations do not exist in a vacuum. Artists often look at and borrow from prior masters or their peers for inspiration. However, not all “visual borrowing” complies with copyright laws or licensing agreements. Copyright infringement, for example, is the direct result of using a protected work without seeking the author’s permission.^[1] As digital technology progresses, more cases of sharing or borrowing unauthorized, copyrighted visual content are unchecked. While legislation fell behind in playing catchup with technology, alternative legal measurements such as Creative Commons (“CC”) licenses started filling the gap in the law.

Copyright laws and licensing agreements establish rights and restrictions for authors and users to own, use, and remix digitized content. However, they take different approaches to implement their legal effect. On the one hand, Copyright follows an “all rights reserved” approach.^[2] All the rights under the U.S. Copyright Law —moral and economic rights to reproduce, distribute, publicly perform, display, and make derivatives—belong to the authors. Copyright excludes others other than the authors from utilizing the protected contents as statutory protection endures. On the other hand, licensing agreements follow the “some rights reserved” approach.^[3] For example, CC licenses recognize all copyrights for the authors, yet they “address them in a way that grants re-users the right to use licensed materials according to the license terms as far as national law permits.”^[4]

Therefore, these alternative legal licenses create Copyright laws but with more flexibility. Copyright licenses such as CC resolve burdensome, exclusion-oriented Copyright restrictions and aim to create a digital space of “shared culture” for users and authors.^[5] The core principle of CC or similar open copyright licenses is to open a free content-sharing worldwide community with up-to-date, free-to-use, and technologically compatible regulatory tools. The emphasis on “open” gained members of hundreds of open-license global coalitions.^[6] In addition, it started many subject-specific “Open Movements”^[7] such as Open Data, Open Access, Open Science, Open Educational Resources, and Open Galleries, Libraries, Archives, and Museums (“GLAMs”).

This article focuses on the Open GLAMs movement. It explains how the public and GLAM cultural institutions can best use digitized cultural materials without misusing, abusing, and infringing on them. This article also provides general readers with a guide to finding copyright restriction-free images, using CC licenses to credit authors, and further remixing and creating derivative works. Further, GLAM Institute readers can also benefit from tips and advice in digitizing their collections and utilizing CC licenses to minimize the risk of content exploitation within their collections.

As Re-users—how to responsibly find, attribute, and reuse digital images

One way to find Copyright restriction-free images is to look for works in the public domain.^[8] There are three main ways for creative works to enter the public domain. First, if a work’s copyright duration expires, it automatically enters the public domain.^[9] Second, if creators choose to adapt copyright licenses for the public domain, such as the “No Rights Reserved” CC0 license^[10] or the Public Domain Mark (“PDM”),^[11] then the work is in the public domain.^[12] Third, some pieces enter the public domain by failing to meet copyrightability criteria or neglecting to renew copyright protection.^[13]

Moreover, stock photo websites provide rights-free images like Getty Images^[14], Stocksy^[15], or Unsplash.^[16] Re-users can download images for free or pay a fee to conditionally enter the server’s customized open Copyright licensing agreements in exchange for downloading. In comparison, CC-licensed images are standardized^[17] and internationally available under the same terms and conditions.^[18] In terms of costs, getting a CC license is always free. Because CC license’s irrevocability^[19], applicability^[20], and costless feature, major world cultural institutions joined the CC open movements and licensed and digitized their collections under CC licenses.

For example, the Smithsonian provides users with over 4.4 million 2D and 3D digital items. The Auckland Museum’s color-based search engine allows users to browse digital collections through color-coding metadata. The Rijksmuseum in Amsterdam provides users with over 300,000 open licensed images. The Metropolitan Museum (“the Met” digitized over 492,000 items with PD marks or CC0 labels.) Other platforms, such as the Domain Review (PD), a UK-based image community interest company collecting copies of public domain works, also adapt CC licenses. Wikimedia Commons gives users 41 subcategories to explore artworks in the public domain. The Library of Congress organizes its digital items by collections. Europeana contains its collection thematically, topically, and chronologically. Lastly, Flickr, the most recommended commons public photo archive, gives users and GLAMs a platform to share and communicate digital information openly.

After finding an image, re-users should always look for Rights Statements and licenses. CC licenses, for example, have four elements that users can freely group into six different types of permits with varying levels of rights restriction. Attribution or “BY” element applies to all licenses and indicates crediting to the creators.^[21] NonCommerical or “NC” element ensures users cannot use an image licensed with this element for commercial purposes.^[22] ShareAlike or “SA” element allows a picture with this element for commercial use, conditioning that any adaptation based on it must have the same or a compatible license.^[23] Finally, noDerivative or “ND” element prohibits re-users from sharing the original image’s transformation or derivative works.^[24] At last, CC0 and PD marks indicate that an image has no copyright restriction.^[25]

To what extent can re-users use, adapt, remix, alter, and redistribute the licensor/creator’s work depends on grouping these CC elements into different license types. From the least restrictive kind of license (re-users can use and adapt the work for any purpose) to the most restrictive type of license (re-users must credit the creators and use the underivative, original work for a specific purpose only), there are: “CC-BY” (Attribution license), “BY-SA” (Attribution-ShareAlike license), “BY-NC” (Attribution-Noncommerical license), “BY-NC-SA” (Attribution-Noncommerical-ShareAlike license), “BY-ND” (Attribution-NoDerivative license), and “BY-NC-ND” (Attribution-Noncommerical-NoDerivative license).^[26]

After re-users understand and target the specific license type, CC recommends using and remixing licensed images with the “TASL”^[27] approach. T (title), A (author), S (source), and L (license) is a basic crediting principle that suggests re-users give as much information as possible on creator attribution, URL to the original work, and link to CC license. When crediting original work, re-users can use the format “Title” by Author. CC(BY-other license element if applicable) version of the license.”^[28] When crediting a derivative work, re-users can use the following format:

This work, “ Derivative Work’s Title,” is a derivative of “Original Work’s Title” is licensed under CC (BY-other license element if applicable) version of license by [reuser’s name].”^[29]

As Galleries, Libraries, Archives, and Museums(“GLAM”)—pros and cons in digitizing open access collections

Galleries, Libraries, Archives, and Museums (“GLAMs”) are the frontiers of the Open GLAM movement. They are the leading metadata providers of these rights-restricted or rights-free images. As Open GLAMs, institutions such as the MET have digitized their collections for the public to access, use, modify, and share freely.^[30] More GLAMs institutions joined the open movement in response to more legal and policy frameworks that international treaties, legislations^[31], private funders,^[32] and consortium initiatives outlined and promoted over the years. For example, in 2015, UNESCO’s “Recommendation concerning the preservation of, and access to, documentary heritage including in digital form”^[33] specified that member states’ GLAMs are “memory institutes,”^[34] which are encouraged to transfer their “documents”^[35] into “digital surrogates”^[36] to preserve “documentary heritage”^[37] nationally or internationally.

Despite the positive impacts outlined in these policies and regulatory frameworks, Open GLAMs have many challenges as an operational model for cultural institutions.^[38] Revenue loss is the most obvious risk of fully digitizing all the collections and publicizing metadata.^[39] As non-profit organizations, GLAMs often face the dilemma: “We don’t necessarily want to make money ourselves, but why should others be allowed to do so based on our metadata?”^[40] Since digitization is expensive, GLAMs with limited budgets eat up the revenue generated from grants, ticketing, branding, memberships, and income from licensing reproduction rights, etc.^[41] Moreover, GLAMs will face potential copyright infringement disputes from non-organizational owners of published works, targeted by stock photo services that provide poor-resolution copies with watermarks or even TPMS (Technological Protection Measures) to prohibit further circulation.^[42]

CC recommends adopting a “semi-open access approach”^[43] for GLAMs to optimize benefits and minimize risks. The semi-open access approach embraces different CC licenses. While it conditionally restricts the use and reuse of digitized materials, the contents are still available to users.^[44] The MET, for example, used CC0 licenses for all its public domain works. The MET’s Open Access utilizing CC0 allows merchants to make and sell products based on the MET’s open domain images without entering a formal partnership with the Met. However, there is a catch. While anyone can print a CC0 licensed image from the Met’s collection on their tote bag, only Met’s partners, such as Allbirds, Baggu, The Still, and Catbrid, can merchandise CC0 work in their “limited collections.” This way, not only the Met offers a publicly accessible collection, but it also partially preserves its digitization revenue by conditioning its brand partners.

More importantly, before releasing digital collections, all open GLAMs should draft and publish copyright policy (or Terms and Conditions/Terms of Use). Copyright policy, unlike Rights Statements, has both Terms and Conditions and Frequently Asked Questions (“FAQ”). For example, the Met’s Open Access Initiative provides users an introductory page about its Open Access.^[45] The Terms and Conditions page covers rights beyond copyright policy. The FAQ page focuses on image and data resources.^[46] The Image Request Form helps the Met to collect user data, learn user behaviors, and gain some control over its CC0 images. Additionally, the Open Access CVS provides the user with additional CC0 image user guidelines.^[47]

Further, the Met has integrated its CC0 collections into external interfaces through third-party platforms such as Google and Wikimedia. For example, social media platforms such as Instagram partnered with the Met as part of its application program interfaces (“APIs”). APIs are the external interfaces that help the Met to further its open-access mission. For example, Instagram launched the app’s augmented reality (“AR”) effects.^[48] As a result, users can use a back-facing camera on their phone to virtually place a CC0 licensed three-dimensional or two-dimensional in their home. For example, a Van Gogh self-portrait in the Met’s CC0 collection can hang digitally in an Instagram user’s space with #MetEffects.

Conclusion

In sum, CC licenses are Copyright licenses without exclusion or territoriality. They are multilingual legal tools that responsibly help users use and reuse creative content online. The responsibility reflects the user’s respect for the creator’s terms and conditions and their mutual engagement in shaping a data-transparent, open-culture digital environment for all. Cultural institutions like GLAMs are the nexuses that connect users and creators. All these stakeholders are essential to ensuring compliance with Copyright Laws globally and safeguarding the principles in the “permission culture.”^[49] Open GLAM, therefore, is more than an idea, a movement, and an institutional network devoted to making cultural heritage more accessible to all.^[50] It is a cradle for muses, a think tank for possibilities, and a repository of free education. So, where does creativity come from? After reading this article, one of the answers could be that it comes from a collective effort dedicated to making culture free and open.

SUGGESTED READINGS

Brigitt Vezina and Alexis Muscat, Sharing Indigenous Cultural Heritage Online: An Overview of GLAM Policies, Creative Commons (Aug. 8, 2020). https://creativecommons.org/2020/08/08/sharing-indigenous-cultural-heritage-online-an-overview-of-glam-policies/

Patricia Aufederheide et. al., Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities (Feb. 2014). https://www.nycbar.org/images/stories/committee/fairuseissuesreport.pdf

Victoria Heath, Sharing Openly Licensed Content on Social Media: A Conversation with GLAM, Creative Commons (Jun. 15, 2020). https://creativecommons.org/2020/06/15/sharing-openly-licensed-content-on-social-media/ (full report: https://medium.com/open-glam/glam-collections-on-social-media-navigating-copyright-questions-7a4065332f39)

About the Author:

Murphy Yanbing Chen is a diasporic professional oil painter and a JD student at the American University Washington College of Law. She holds a Creative Commons Certificate for GLAM professionals (Galleries, Libraries, Archives, and Museums). Her advocacy and passion for creatives and cultural institutions extend beyond research. She has been a Glushko-Samuelson Intellectual Property Law Clinic student attorney since 2022-2023.

Sources:

1. Creative Commons, 2.1 Copyright Basics, in Creative Commons Certificate for Educators, Academic Librarians and GLAM (2019), https://certificates.creativecommons.org/cccertedu/. ↑

2. Id., 2.2 Global Aspects of Copyright. ↑

3. Id. ↑

4. Id. ↑

5. Id., supra note 1, 1.2 Creative Commons Today. ↑

6. Id. (stating that CCGN, Creative Commons Global Networks has seven hundred-plus members from CC chapters worldwide). ↑

7. Id. ↑

8. Creative Commons, supra note 1, 2.3 The Public Domain. ↑

9. Id. ↑

10. Creative Commons, https://creativecommons.org/share-your-work/public-domain/cc0/#:~:text=CC0%20enables%20scientists%2C%20educators%2C%20artists,works%20for%20any%20purposes%20without (last visited Apr. 19, 2023). ↑

11. Creative Commons, https://creativecommons.org/share-your-work/public-domain/pdm/ (last visited Apr. 19, 2023). ↑

12. Creative Commons, supra note 1, 3.3 License Types (addressing how image re-users should bear in mind that CC0 label takes legal effect, which allows creators to waive Copyright; on the contrary, the PDM mark has no legal effect, it serves as an informant to tell the public that the work is aged enough and no longer subject to copyright restraints.). ↑

13. Creative Commons, supra note 1, 2.3 The Public Domain. ↑

14. Getty Images Rights & Clearance, https://www.gettyimages.com/solutions/rights-and-clearance (last visited Apr. 19, 2023). ↑

15. Stocksy Content License Agreement, https://www.stocksy.com/legal/contentlicense (last visited Apr. 19, 2023). ↑

16. Unsplash License, https://unsplash.com/license (last visited Apr. 19, 2023). ↑

17. Creative Commons About Licenses, https://creativecommons.org/licenses/ (last visited Apr. 19, 2023). ↑

18. Creative Commons, supra note 1, 4.1 Choosing and Applying a License. ↑

19. Id. (stating that the CC license is irrevocable because once it is applied to a copyrighted work, the license is legally effective until the copyright expires). ↑

20. Id. (explaining that applying CC license type depends on how creators engage with all rights provided by the Copyright laws). ↑

21. Creative Commons About Licenses, supra note 17. ↑

22. Id. ↑

23. Id. ↑

24. Id. ↑

25. Creative Commons, supra note 13. ↑

26. Creative Commons About Licenses, supra note 17. ↑

27. Creative Commons, supra note 1, 4.2 Things to Consider after CC Licensing. ↑

28. Id. ↑

29. Id. ↑

30. Creative Commons, supra note 1, 5.1 Open GLAM: Open Access to Cultural Heritage. ↑

31. See generally, Executive Order No. 13,642 (2013) (under the Obama administration, the White House issued an executive order to make digitized government information freely and openly accessible to the public). ↑

32. Creative Commons, supra note 1, 5.1 Open GLAM: Open Access to Cultural Heritage (commenting that there are privately owned platforms that provide policy guidance for open access). ↑

33. UNESCO, Recommendation Concerning the Preservation of, and Access to, Documentary Heritage Including in Digital Form (2015), https://unesdoc.unesco.org/ark:/48223/pf0000244675.page=5. ↑

34. Id. ↑

35. Id. (specifying that document is an object comprising analog or digital information content and the carrier on which it resides.) ↑

36. Id. (mentioning that digital surrogates are digital reproductions of a physical work) ↑

37. Id. (noting that documentary heritage comprises those single documents—or groups of documents—of significant and enduring value to a community, a culture, a country, or to humanity generally, and whose deterioration or loss would be a harmful impoverishment.) ↑

38. Creative Commons, supra note 1, 5.2 Opportunities and Challenges of Open GLAM. ↑

39. See Harry Verwayen et. al, Europeana Whitepaper No.2: The Problem of the Yellow Milkmaid at 14-15 (Nov. 2011), https://pro.europeana.eu/files/Europeana_Professional/Publications/Whitepaper_2-The_Yellow_Milkmaid.pdf. ↑

40. Id. at 15; see also Nick Poole, The Cost of Digitising Europe’s Cultural Heritage A Report for the Comite des Sages of the European Commission, 17-18 (Nov. 2010) (discussing that digitizing as a layered process includes activities from staff training, selection, preparation, cataloging, conservation, microfilming, scanning, software processing, quality managing, to storing) https://nickpoole.org.uk/wp-content/uploads/2011/12/digiti_report.pdf. ↑

41. Creative Commons, supra note 1, 5.2 Opportunities and Challenges of Open GLAM. ↑

42. See Catherine Hickley, U.S. Museum Criticises Use of Gérôme’s Slave Market in German Right-Wing Campaign, THE ART NEWSPAPER (Apr. 30, 2019) https://www.theartnewspaper.com/2019/04/30/us-museum-criticises-use-of-geromes-slave-market-in-german-right-wing-campaign (reporting Clark Art Institute calls for a stop to spread the xenophobic message regarding a German right-wing party through its open GLAM collection). ↑

43. Creative Commons, supra note 1, 5.2 Opportunities and Challenges of Open GLAM. ↑

44. Id. ↑

45. See generally, Open Access at The Met, https://www.metmuseum.org/about-the-met/policies-and-documents/open-access (last visited Apr. 19, 2023). ↑

46. Id. ↑

47. See generally, The Metropolitan Museum of Art Open Access CSV, https://github.com/metmuseum/openaccess (last visited Apr. 19, 2023). ↑

48. Nina Diamond & Claire Lanier, The Met’s Art at Your Place? Instagram AR Brings it Home, THE MET (Nov. 9, 2020) https://www.metmuseum.org/blogs/collection-insights/2020/instagram-ar-filter. ↑

49. Patricia Aufederheide et. al., Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities, 7 (Feb. 2014) https://cmsimpact.org/wp-content/uploads/2016/01/fair_use_for_visual_arts_communities.pdf. ↑

50. Creative Commons, supra note 1, 1.3 Creative Commons and Open GLAS. ↑