Last month, Ken Cook tweeted me that one of my Flickr photos was being used. I took a quick look at the article in question, saw that the photo was correctly attributed and put it aside. I thought, “well, maybe he’s letting me know someone is using my image in an article I might not agree with….” I was traveling and finishing a database project simultaneously that week and had only one undernourished brain cell left for Twitter and the web, so I added the tweet to my to-do-later list.

@rwentechaney making sure you know about your photo being used businessinsider.com/most-anti-gay-…

— Kenny Cook (@thekencook) July 5, 2012

Once I was back at home and settled, Cook’s meaning settled in…. My Flickr photos are licensed with an Attribution-NonCommercial-ShareAlike Creative Commons license. I had focused on the attribution part in my first glance and had completely ignored the non-commercial part: “You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”

The site using my image was Business Insider, a site that looks like it’s certainly commercial.

My Chick-fil-A photo on Business Insider

Not only is the site commercial, but it was also posting this article just as the current Chik-fil-A controversy was heating up. So, am I okay with my photo being used? Is it a violation of my non-commercial license? I went to my Creative Commons and copyright bookmarks to see if I could find an answer. This issue is not new; I have a Creative Commons bookmark from Fall 2009: Defining Noncommercial: A Study of How the Online Population Understands “Noncommercial Use.” The study is good reading, but it did not provide a clear answer to my questions.

Ars Technica’s Creative Commons images and you covered the issue with a little more depth from the users’ perspective. On the issue of non-commercial images, the author advised editors, “check with your publisher’s legal department on this question, because putting noncommercial Creative Commons images in your articles is a real gray area.”

In contrast, the Ars Technica article linked to a 2008 post on non-commercial use by librarian Molly Kleinman. Molly stated the opposite in her examples: “Using a photo on an ad-supported website = Commercial.”

So, I’m indecisive for now. When I first decided to publish my photos, blogs, slide decks, and videos with Creative Commons licenses, my intended users were educators and non-profits. I believe in sharing, but I didn’t set out to make a for-profit website editor’s job easier/cheaper because he can embed one of my images instead of sending a photographer/writer out to Chick-fil-A for a photo. Again though, I believe in sharing and I believe in the sharing culture that has allowed creativity to flourish on the web.

Business Insider is clearly making money (that commercial advantage or private monetary compensation phrase from the Creative Commons license excerpt above). There’s a vodka ad next to my photo, for Pete’s sake. But, are they making money because of my photo? Most likely not. They’re most likely making money from the headline. (Remember the opening of that clause says in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.)

Is there a difference between the use of my photo and the overall for-profit status of the organization?

After three weeks of reading and reaching out to experts, I’m still uncertain.

I’m indecisive for now because I want to be consistent. If I ask Business Insider to remove my image, I should also do the same of many of the smaller blogs that have used my images. They may not all have a pricey Ketel Vodka block ad in the sidebar, but they often have Google AdWords or Amazon affiliate blocks.

I tend to lean to the left on this. My thoughts are more in line with Lawrence Lessig than Sonny Bono on copyright issues, so I would rather share than restrict. However, I want to be faithful to the spirit and law of Creative Commons.

I’ll take any words of wisdom, either in agreement or dissent.

(Thanks, Ken Cook for making me think this through.)