What is a commercial use?

New Yorker's use of my photoLast week, both the New Yorker and Wired used one of my photos to illustrate an article about the Aaron Swartz JSTOR downloading case.

I had posted the photo to Flickr with a Creative Commons-NonCommercial-ShareAlike license. I believe that the use by the New Yorker and Wired is commercial in nature and therefore a violation of my license, and I have contacted both publications. I am not asking either to remove my photo (after all, most people who were going to read those articles have already read them and seen the photo). I am simply letting them know that they have been lazy and violated the rights of a creator. All they had to do was write me a note asking for permission to use my photo. Many others have done this.

I’ll be interested to see how the publications respond. I’ve approached this as an opportunity to educate them about Creative Commons licenses, rather than as a confrontation. (Here’s another take, if you read German.)

While I was discussing this situation with a colleague, he pointed me to a blog post by Bethany Nowviskie about why she is no longer using the non-commercial license. I’m still undecided about whether I will continue to use it, but I’m very certain that commercial entities need to abide by it when I do.

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