Aw, Shucks, Copyright

(Update: I revised the first part of this article substantially for my teleread article. It deals with copyright, public domain image and Wikipedia. Below is the second part of this article which is on a smaller but no less important point).
David Rothman and I are trying to come up with a way to include advertising on TeleRead. The big hurdle seems to be creative commons images we’ve been using to illustrate the blog. Are they incompatible with advertising on the blog?

Creative Commons has a draft which says that incidental uses are not commercial use:

D. Conditions on Use: Original work

Is there any money changing hands in any one of the following ways in connection with the verbatim use of the NC licensed work?

1. As a condition of using the NC-licensed work (eg. by levying a direct charge or charging subscription fees for access to NC-licensed work(s)), license violation – this is not a noncommercial use.
2. As a condition of using another work that includes an NC-licensed work, where the NC-licensed work is either the primary draw or a substantial amount, whether qualitatively or quantitatively (eg. where an NC-licensed image is used on the cover of and as a central part of a book that is sold commercially), license violation – this is not a noncommercial use.
3. As a condition of using another work that includes a verbatim NC-licensed work, where the NC-licensed work is not the primary draw or is an insubstantial amount, both qualitatively and quantitatively (eg. where one NC-licensed image is used in a book that is sold commercially and the image is not a thematically significant part of the book) – this is a noncommercial use (provided that there is no charge associated with directly accessing the work.)
4. As an optional contribution (e.g. a tip jar, donations, membership drive) for an individual, an educational institution or nonprofit organization that uses the verbatim NC-licensed work or another work that includes a verbatim NC-licensed work – this is a noncommercial use.

Point (3) specifically addresses the “image as incidental use” scenario. However, if true, that would allow people to do advertising as long as the image is not the main draw or is an insubstantial amount. However, these are relative terms. For example, a literary ebook would use illustrations; I’m guessing it’s not the main draw (the text is), but it’s not an insubstantial amount.

But this interpretation is not guaranteed and may not reflect what the court would say. Here are some mitigating steps one could take:

1. use CC-SA instead of CC-NC-SA whenever possible.
2. If not possible,
   • use reduced images, or partial images
   • keep good logs of web traffic (so you could estimate the possible financial gain)
   • simply have a policy that if anyone contacts you, immediately take it down or replace it with something else.
   • make sure you have uploaded using the upload tool, because that let’s you upload provenance information
3. Set an arbitrary point for when you been diligent about rights, and allow no ads before that date.
4. Substitute free graphics for photographs when the case is difficult.

Practically speaking, most people who take photographs and make them available through CC search engines are more concerned about being adjacent to questionable or unduly commercial content. A newsish sort of site is unlikely to make people send nastygrams.

See also: When can you use public domain paintings?