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Creative And Strategic Legal Guidance

A Primer on Creative Commons Licenses & Pending Litigation

On Behalf of | Oct 12, 2016 | Business Law

What is a Creative Commons License?

A Creative Commons (CC) license is a special form of public copyright license that allows you to keep your copyright but also allows you to dictate how others may use your work. As long as the licensee gives credit to the licensor (owner) of the copyright, they may copy or distribute the work, but only in the specific ways the licensor chooses. The global nonprofit organization that issues CC licenses is Creative Commons Corporation (“Creative Commons”). According to Creative Commons, CC licenses “enable the sharing of knowledge and creativity to build a more equitable, accessible, and innovative world.” In all CC licenses, the licensor permits others to copy, distribute, display, and perform the work. There are different types of CC licenses the organization issues. The type depends on (1) whether the licensor wants to allow adaptations (i.e. derivatives) of the work to be shared, and (2) whether the licensor wants to allow commercial uses of the work. Regardless of the type of CC license, any licensor can apply the license to their work and any licensee can use the license according to the terms and conditions of the specific type of license.

The Meaning of Non-Commercial Use

The meaning of non-commercial use of a work under a Creative Commons license has come under recent scrutiny. In March of this year, Great Minds, a non-profit educational organization, filed a complaint against Fedex, alleging copyright infringement. Great Minds alleges that two FedEx stores, one in Michigan and one in New York, had reproduced Greats Minds materials for profit without authorization or license. There is no decision on the issue as the litigation is ongoing. However, it is an interesting issue that is worth discussing.

According to the complaint, Great Minds is a non-profit education organization that works with educators to create educational materials that are then accessible to all students regardless of their circumstance. You may recognize Great Minds as the creator of the Common Core mathematics structure that many schools have adopted. They make the educational materials available to any member of the public to “reproduce and Share… in whole or in part, for Non-Commercial purposes only” under a Creative Commons Attribution- Non Commercial – Share Alike 4.0 International Public License. The license states the following:

To the extent possible, the Licensor waives any right to collect royalties from You for the exercise of the License [i.e., non-commercial] Rights, whether directly or through a collecting society under any voluntary or waivable statutory or compulsory licensing scheme. In all other cases the Licensor expressly reserves any right to collect such royalties, including when the Licensed Material is used other than for Non-Commercial purposes.

Great Minds asserts that this non-commercial use limitation in the license “requires that commercial print shops, like FedEx, negotiate a license and pay a royalty to Great Minds if they wish to reproduce the Materials for commercial purposes at the request of their customers.” Further, Great Minds asserts that they would not have made their educational materials available to the public for free if they would in turn give up their right to charge for commercial reproduction.

While this may seem like a cut and dry situation where the little educational not-for-profit organization is being taken advantage of by a commercial print shop, the motion to dismiss filed by FedEx is equally as compelling.

In its memorandum of law in support of its motion to dismiss, FedEx’s overarching argument is that a creative commons licensee does not necessarily have to rely on itself to perform licensed activities. A licensee can, for example, enlist a commercial print shop to make copies of the materials they are licensed to use for non-commercial purposes. The license “does not prohibit the licensee school districts from delegating portions of licensed activities, such as reproduction, to others.” FedEx alleges that since the school districts are using the work within the scope of the license, the use is “non-infringing as a matter of law.” FedEx explains further that “if Great Minds intended to limit the licensee school districts’ right to enlist others to assist in reproduction, it should have done so in the License.”

What is even more compelling is that the Creative Commons Corporation, the organization which issues CC licenses, wrote a letter to the judge in this case requesting permission to file an amicus brief in support of FedEx’s motion to dismiss. In the letter, the Creative Commons Corporation discusses that the type of CC license Great Minds has “would be of decidedly limited value if the licensor could invariably sue any for-profit intermediary engaged by the end user in the course of carrying out the ultimately permitted use.” Creative Commons emphasizes that this is not how CC non-commercial licenses were intended to work and would “substantially diminish the utility of a license that enables the sharing of knowledge and creativity to build a more equitable, accessible, and innovative world.”

When you have a copyright in an original work and want to give up some of your exclusive rights in order to share your creativity or knowledge or innovation with the world, it can be personally challenging if an individual or entity uses your work in a way you did not intend for it to be used. It is a difficult process to choose and understand what the public may do with your work if, for example, you issue a Creative Commons license. On the other hand, if the purpose of issuing a non-commercial use license is for the greater good, how can that non-commercial use be limited equitably? This legal battle between Great Minds and Fedex touches on important questions about what is truly within the scope of non-commercial use. It will be interesting to see how this case plays out.

(Letter, P. 1)

Creative Commons Corporation, License Features, https://creativecommons.org/choose/ (Last Visited Sep. 2, 2016).

Great Minds v. FedEx Office and Print Services, Inc., No. 16-CV-1462 ECF, 2016 (E.D.N.Y. March 24, 2016).

(Compl., ¶ 12)

(Compl., ¶ 13)

(Compl., ¶ 14)

(Compl., ¶ 15)

(Motion to Dismiss, § I)

(Motion to Dismiss, § II)

(Motion to Dismiss, § III(A))

(Motion to Dismiss, § III(B))

(Letter, P. 2)

(Letter, P. 3)