Do the CC licenses prevent insults?

Question

Most CC licenses allow a change of the material

Adapt — remix, transform, and build upon the material for any purpose, even commercially.

I am a big fan of CC licenses, because they enable creativity and progress. I see a bit of problems when it comes to pictures of humans.

When I ask people if I may modify their photos, they probably think of

• changing contrast and brightness
• cropping and resizing
• putting a border around it

However, anyone may put the person into a new context by "adapting" the picture, i.e. modify it. The modification may include

• political statements (like Nazi symbols),
• religious symbols or
• sexual practices.

Do the CC licenses prohibit such changes, e.g. changes that insult someone or that may get the person in trouble (e.g. someone starts an investigation because of potential sexual abuse)?

I understand that there are the ND licenses, which do not allow any modifications at all. My question is not about the ND licenses. I want to be as permissive as possible with pictures.

NoDerivatives — If you remix, transform, or build upon the material, you may not distribute the modified material.

Answer 1

The Creative Commons licenses do not restrict field or purpose of use. Local laws about defamation, etc., may do so, depending on the nature of the downstream use. For example, if someone edits a CC-licensed picture of you so it appears that you are committing a crime, this might still be an illegal, libelous modification, despite it not being a copyright violation.

It is worth noting that Creative Commons licenses do have two attribution-based provisions that may minimize harm in certain cases:

1. Modifications must be clearly marked, per 4.0's section 3(a)(1)(B), so any prejudicial modifications will clearly indicate you are not the immediate author of the work:

   indicate if You modified the Licensed Material and retain an indication of any previous modifications;

2. More strongly, section 3(a)(3) in the 4.0 licenses require that downstream users remove upstream attribution altogether upon the original author's request:

   If requested by the Licensor, You must remove any of the [upstream attribution] information required by Section 3(a)(1)(A) to the extent reasonably practicable.

   So, if someone uses your work in a way you don't like, you may request that your name not be attached to it in any way whatsoever.

Obviously, neither of these help if the problem is that you are depicted in the image itself, but they do help if the issue is having your name unfairly attached to an unsavory work.

Answer 2

CC licenses cover copyright and related rights, but do not affect other permissions or restrictions. For example, personality rights might still apply – but that is extremely jurisdiction-dependent, and very fact-specific. A CC license does not authorize defamatory edits, but also doesn't guarantee that you'll like how the work will be used.

If a CC-BY-*-licensed work is edited, that has to be mentioned in the attribution notice. That limits the impact of problematic edits, but only when the license is complied with properly.

Depending on the type of work, using a license other than CC-BY or CC-BY-SA could be appropriate. CC-BY-ND could be particularly appropriate for opinion pieces where you don't want your words to be changed. Of course, the only way to be safe is to avoid publishing potentially problematic works entirely.

Answer 3

No. If you allow people to make derivative work from your assets, they may do anything they want, for any purpose they want.

The definition of not appropriate or illegal may vary from persion to person or jurisdiction to jurisdiction. Thus what can be done with cc-by licensed material does not so much depend on your personal views and ethics.

However it is always required to give proper attribution, i.e. no-one can claim that the modified work is your work, less that you endorse it - or they might make themselves liable to the usual damages via law suit as for any other insult or defamation. But they must state that their modification is based on your original work and preferentially link to the original one. See here how good attribution should look like.

Answer 4

The CC license explicitly does not hinder you from doing any such thing. For your particular example, that's widely irrelevant, though. The CC is the least concern, really.

In your jurisdiction, display of Nazi symbols (whether as defamatory or insulting edit to a photograph, or otherwise) is explicitly illegal.
Even without Nazi symbols or other things, taking (or attempting to take) a photograph of a person without permission can be more than just a trifle, but indeed a serious felony ("höchstpersönlicher Lebensbereich, 201 StGB"). Humiliating photography, intent to humiliate, or a photograph of a person in exigence? Felony. Making an unsolicited copy of an otherwise legitimate picture? Felony. Insult, defamation? Felonies.

The CC license does require (3b) that when you make modifications, you make it "obvious", whatever that means (the license doesn't say). It also does not require you to point out what was modified, only that prior notification notices are retained.
Thus, a meaningless small disclaimer similar to the one that is required in France since 2017 for photoshopped images in fashion magazines would arguably make it "obvious enough" that an image has been modified, and would mean that you fulfill the terms.

In practice, nobody cares anyway. You can, for example, read CC-licensed content on the Kindle platform and the license explicitly says under (4a) that you may not take any technical mesures that could hinder the user's ability to use the content. Which, on a closed DRM-enabled system is quite obviously the case. The same is true for e.g. the RTL group sending CC-licensed footage (or excerpts thereof) over HD+.
This is, by all means, a violation of the license, and guess what, nobody cares. They do it every day.

Answer 5

Creative Commons is not relevant here. Fair Use is.

However, anyone may put the person into a new context by "adapting" the picture, i.e. modify it. The modification may include

• political statements (like Nazi symbols),
• religious symbols or
• sexual practices.

Do the CC licenses prohibit such changes, e.g. changes that insult someone or that may get the person in trouble (e.g. someone starts an investigation because of potential sexual abuse)?

It wouldn't matter if they did. CC replaces copyright, but it does not replace copyright law. Specifically, it does not delete the allowances copyright law grants for Fair Use. Fair Use is a complicated beast, but it very broadly protects uses for parody and criticism.

Defamation is evaluated separately

If something falsely paints you in a bad light, you may have no recourse on copyright or CC grounds due to Fair Use. But separately you may have recourse under Defamation. The examples you mentioned are extreme, and look like they'd fall into a special category called "Defamation per se". Those are statements so heinous that the victim doesn't even have to bother proving damages; they are just assumed.

However in some countries, truth is a defense against defamation. If you accuse someone of being a sexually promiscuous homosexual, and they actually can be found every Saturday night at sex clubs... then they get to accuse you of defamation per se, but you get to -- well, that case won't ever happen.

I understand that there are the ND licenses, which do not allow any modifications at all. My question is not about the ND licenses. I want to be as permissive as possible with pictures.

Fair use (and defamation) override ND licenses too, so that's no help.

You could go after them for both defamation and license violation. If they fail to make their case for Fair Use, then you win. If they fail to defend your defamation charge, you win. Such that winning a court case is winning. You may be worse off, due to your legal fees, uncollectability, or Streisand Effect.