Commercial or Non-Commercial ... Professional or Aficionado

06 February 2018

Region: Headquarters

On a trip to Cuba I discovered that in Spanish the distinction is not professional or amateur but rather professional or aficionado ... basically a knowledgeable enthusiast. Is your photography that of a professional or that of an aficionado? I prefer this to using the term amateur simply because the word amateur has connotations of poor quality which do not necessarily apply to people who take photographs as a hobby rather than as a job.

Of course, an aficionado or enthusiast can sometimes earn money from photography. Between the professional and enthusiast there is a line, not a clear division. It is usually also a line between commercial and non-commercial, between public and private; and where that boundary lies means different things to different people.

Let me start with an example. I recently discussed my home insurance policy with a well-known company to whom I was considering moving. When I mentioned my camera equipment I was asked if I ever made any money from photographs or entered photographs in competitions. Because if I did, then they wouldn't cover the camera because my use was 'professional'. What surprised me most was their attitude that entering a photograph in my local camera club exhibition, even if all I might win was a certificate, counted as 'professional' use to them.

The creative commons licences (CC) have gone a long way towards bringing an understandable copyright and licensing regime to a wider public. The CC licences clearly split between ones that allow commercial use and ones that do not. The CC definition of 'commercial' is 'one primarily intended for commercial advantage or monetary compensation' which is somewhat circular but note the the inclusion of the word 'primarily'.

The exceptions to copyright, otherwise known as 'permitted acts' often refer to fair dealing for non-commercial use and sometimes also use the word 'private', as in 'Personal copies for private use' and 'Research and private study'. The latter section of the UK act, also refer to '... the purposes of research for a non-commercial purpose ...'.

A quick search for what commercial research is brings up 'a contract or collaborative research project, or consultancy' (from the University of the West of England) but the LSE says research is commercial if it is 'envisaged that the research will ultimately be used in a project with some commercial value'.

I have been a bit frustrated in researching this blog since what might be very useful items, such as the British Library's advice, gives the dreaded 404 web error. Conversely, I can go back to a 2014 blog post of mine which notes a Creative Commons survey on this very question. It's a long document and much of it is a definition of a web form that isn't very easy to follow. You should look at the graphs following page 170 of the PDF. But please bear in mind three things ... this is a 2009 survey and so predates much of the rise of social media, the majority of respondents were in the USA where the law on such things is slightly different, and to quote the study itself ...

"the empirical findings suggest that the vast majority of both U.S. creators and users do not know the basics of copyright law, adding to other studies that show public interest in and need for more copyright law and, specifically, fair use education."

Perhaps the bottom line from the CC survey is that 70% of respondents who defined the term thought that commercial use is "a use where money is made". Other data finesses that statement. One thing I must admit I hadn't considered is how often people consider the person doing the copying to be commercial or non-commercial, rather than the purpose for which they are doing it.

In my 2014 blog I also noted that Getty had launched an initiative whereby you could embed their images in your web pages/blogs for free as long as the use was 'non-commercial'. However, their definition of commercial was, shall I say, more accommodating than most ...

"The fact today that a website is generating revenue would not limit the use of the embed. What would limit that use is if they used our imagery to promote a service, a product or their business. They would need to get a license."

This facility is still in place: www.gettyimages.co.uk/resources/embed

[If you want to read my 2014 blog post, go here: theiprofessionals.blogspot.co.uk]

At a recent meeting with the UK Intellectual Property Office I asked whether there could be guidance on the boundary between commercial and non-commercial. The terms are bandied about so much in licences as well as legislation, that it seems unfair for there not to be clear legal guidance.

What do you think? Are you professional or 'enthusiast' ... what would you consider to be non-commercial use of your photographs? Please contribute to the comments below.

[Andy Finney is the Society's representative on the British Copyright Council]

Comments (3)

 
14 February 2018

It can be further complicated by the different laws, even within Europe. For example, I have photographs of the Eiffel Tower, taken from the Montparnasse viewing platform. I can use the day-time images for any purpose as the Eiffel Tower is in the public domain. I cannot use the night-time images (when the Tower is illuminated) for any commercial purposes without consent, as the lighting installation is considered to be an artwork and the designer/installer holds the copyright. It is the same with all "public (street) art in France I believe. Sweden, where I live, is also likely to prohibit the commercial use of images that contain public art. I'm not sure why we bother with photography sometimes!
grahame s

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Andy Finney
07 February 2018

Thank you Robert. You've raised a few extra interesting points. Please keep them coming everyone.

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Rob Friel
07 February 2018

I wouldn't classify myself as professional - I don't do it explicitly to earn money or offer commercial services. But that doesn't mean I would give prints away etc.

I would classify commercial use in a similar way to Getty - promoting a service, product or a business. There's a grey line where 'art' becomes product though (e.g. prints). This includes use by a business in its literature (even if it's not sales - amazing how many people think its ok to download off the web...)

I would also possibly include use of imagery in blogs as commercial, where self publicity with the intent to earn money is the aim, even if its 'free advice' etc.

There are areas where it gets more difficult...

Is using an image in an exhibition to illustrate something commercial? Does it make a difference if the exhibition were for commercial gain or charitable/educational?

Pro-am competitions become challenging when you think about it - if your intent is self promotion as a pro then its probably commercial - but if you are an amateur? Is the prize cash or product - does that make a difference?

So what is non-commercial?

I would include :
Exhibitions where there is no financial gain (but surely the photographer should consent - and there I have problem with creative commons licences)?
Academic use - probably the only clear cut one.
Sharing because you want to highlight the photographers work. (Sounds easy but I would exclude lots of social media that try to add ads to their share sites to make money out of sharing popular imagery to lots of people - that's surely commercial!)




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