Stephen McArthur is a video game lawyer who focuses on trademark and copyright issues in the games industry. You can read more about his practice at www.smcarthurlaw.com
The Creative Commons is an attractive place for developers to look when choosing assets such as music, animations, soundtracks, or character designs for a game. Often thought of as a royalty-free or “public domain” set of creative content, the truth behind the Creative Commons is much more ambiguous. Despite the convenience and accessibility of Creative Commons assets, I counsel my clients to avoid using them altogether due to the potential for expensive legal hurdles and other surprise problems that can arise.
What is the Creative Commons?
A group of scholars and entrepreneurs founded the Creative Commons in 2001 as an alternative way for copyright holders to exercise their rights to their creative works. Before this, most creators used an “all-rights-reserved” model where the creator expressly restrained anyone else’s ability to use the work without explicit permission.
Creative Commons developed a set of six different ways that creators can use to license their work to others. Under the various Creative Commons licenses, creators can place different types of limitations on the use of their intellectual property (IP). Most notably, the restrictions may prevent derivative works or commercial exploitation, but the creators are always giving up at least some of their rights.
One subset of Creative Commons licenses are known as “ShareAlike” licenses. These licenses allow the use of copyrighted material, but require that any works created using that material also be shared under the same Creative Commons license. This can have some important implications that we will discuss below.
What about the public domain?
It is important to note that Creative Commons licensing is not the same as the public domain. The public domain refers to works that are no longer protected by traditional copyright, usually because they are very old and their copyrights have expired. The Creative Commons is a tool for creators to keep their copyright interests in a work while providing a simple platform to allow others to benefit from their creations with fewer restrictions than default copyright protection.
Why should I avoid using Creative Commons assets in my game?
- Proper attribution can be difficult and time consuming
Compliance with the terms of a Creative Commons license can be counter-intuitive and challenging. Proper attribution is required to license any asset under one of the six main Creative Commons licenses. That attribution requirement forces the developer to track and maintain this information and include the attribution somewhere in the final game.
Also, the process of keeping track of assets used during development and the requirements for how each one is licensed is a tedious, time-consuming process that is easy to mess up. Incorrect attribution can expose a developer to a costly lawsuit since exceeding the scope of a Creative Commons license can constitute copyright infringement. Claiming an “innocent mistake” is not a valid defense to copyright infringement.
- You might give up your rights to monetization
If you use content licensed under a noncommercial Creative Commons license, then you are not authorized to exploit your game commercially. This can seriously hamper any commercial application of your game and your company’s bottom line.
Developers should be aware that using any element licensed under either of the ShareAlike licenses requires you to license any adaptations of that material in your game under the same terms. If you use even one small piece of artwork in the background of your game that was licensed under the Attribution-ShareAlike license, you have now given anyone permission to utilize parts of your game that include that licensed material or adaptations of the material. This could potentially be rather broad, depending on how that material is used within the game. For example, imagine that you used a Creative Commons-licensed drum loop in all of the music tracks in your game. Now, all tracks including that loop are subject to that ShareAlike license, even if the rest of the track is your original creation.
- Creative Commons does not give you all the rights you need
While Creative Commons licenses allow a creator to easily license their rights in a work, other rights may also exist that they cannot grant you. Examples of this include moral rights, the right of publicity, and third party rights.
For instance, if a photographer licenses a photograph of someone other than themselves, the subject of that photograph has a right to their likeness. That right isn’t waived or granted simply because it is part of the Creative Commons. If you use the photograph in your game, even with proper attribution to the photographer, the subject may be able to sue you for using their likeness without permission.
Virgin Australia was recently sued in U.S. federal court for exactly that issue. The company used a photograph obtained from Flickr and correctly licensed under Creative Commons to advertise their mobile phones, but were sued by the girl in the photo for depicting her in an unflattering way.
- Figuring out where an asset came from is almost impossible
Verification is a significant issue when using Creative Commons-licensed materials. It is impossible to know if the asset you found online was actually licensed under the Creative Commons by the creator, or if a third party took it without permission and uploaded it. Even the most trustworthy and reputable sites can unknowingly contain falsely-licensed work. The only way to know for certain that you have permission to use an asset is to enter into an individual license agreement with the genuine creator.|
- You want your game to be unique, not ubiquitous
A final important reason to avoid the Creative Commons is uniqueness—the few assets that have been verified to be OK to use will be the same ones that many other developers are using. They are, in fact, “common.” Creating your own music, artwork, and other game assets not only protects you from the legal headaches described above, but also prevents other developers from using those assets. This will help to ensure that your game will stand out from the crowd.
Why shouldn’t I license my game under the Creative Commons?
As seen above, if you license your game under the Creative Commons, then you may be giving up the exclusive ability to monetize your game. Creative Commons licenses are non-revocable. While you can choose to stop distributing your game under the Creative Commons license, already-distributed copies are still subject to it. Because of this, you should make certain you are comfortable with the implications before applying a Creative Commons license to your game content.
With a Creative Commons license, you also lose control of who uses your game and how they use it. For example, as long as they credit you, a hate group is free to use your game to promote their agenda. Your competitor could use your game for their own purposes. Situations like those are easy to avoid by retaining all your rights and choosing to whom you license your game.
Further, US courts have yet to hear many meaningful Creative Commons cases, which means that there are numerous unanswered issues that may cause problems for anyone involved with Creative Commons licensing. There are different lines of precedent and different remedies available, depending on whether or not a license is “limited” or “nonexclusive.” Since this legal determination hasn’t been made regarding the Creative Commons, future litigation could limit your ability to meaningfully protect your video game. Reserving all your rights under traditional copyright, on the other hand, would provide you with well-established rules and strong protections and enforcement mechanisms.
While the traditional copyright system is not perfect, it offers the strongest safeguards for developers. The Creative Commons licenses are a fantastic tool for sharing ideas and creations, but they lack the protections a sophisticated video game developer needs. Even Severine Dusollier, a project leader for the Creative Commons in Belgium, doesn’t endorse using it in all situations, fearing the same kinds of complications mentioned in this article. In summary, Creative Commons licenses create practical and legal hurdles that are best avoided when developing games.
 You can read about the six main types of Creative Commons licenses at https://creativecommons.org/licenses/. There is also a seventh type of license, kniown as the "CC0" or "CC-zero", which tries to be equivalent to the public domain. However, it is not always possible for someone purporting to invoke the CC-zero to abandon all of the rights in a given work. Thus, a CC0-zero work may still be subject to restrictions and should be avoided for the same reasons mentioned elsewhere in this article.
 Chang v. Virgin Mobile USA, LLC, 2009 U.S. Dist. LEXIS 3051 (N.D. Tex. Jan. 16, 2009). See http://www.nytimes.com/2007/10/01/technology/01link.html?_r=0 for more background on the suit.
 While not a video game case, this situation provides a real-world example of content that was incorrectly sourced and licensed under Creative Commons.
 Severine Dusollier, Contract Options for Individual Artists: Master's Tools v. The Master's House: Creative Commons v. Copyright, 29 Colum. J.L. & Arts 271 (2006).
This article is for general information purposes and is not intended to be and should not be taken as legal advice.