HOWTO Negotiate a Creative Commons License: Ten Steps

xtine burrough and I just published Digital Foundations: an Intro to Media Design with the Adobe Creative Suite with AIGA Design Press/New Riders under a CC license (a first for the publisher.) The book teaches the formal principles and exercises of the Bauhaus through lessons in the Adobe Creative Suite. There are a whole spate of reasons why we wrote this book, but the focus of this post is on how we were able to negotiate the Creative Commons license from New Riders, which is owned by Peachpit, which is owned by Pearson (a big big corporate big thing.)

1. Figure out what you want and ask for it

Every contract is negotiable. Choose what you want and ask for it. Do not be afraid to ask for it. In our case, we focused on getting Creative Commons licensing into the contract, but we also asked for and received other modifications, including a higher percentage of royalties after a certain number of books sold, a stipend to design the book and ownership of the book layout and design (which we licensed CC).

2. Know that your publisher is scared

Publishers saw what happened to the music industry. Sales of print books are down across the board. Publishers know things are going to change, but they don’t know what that change is going to be. Know that your publisher is willing to experiment. “Inspire them to be leaders.” (ironic, but serious)

When we set up our own domain, showed the publisher the wiki (licensed CC, well before we signed our contract), and our blog, we were kind of scared they would be upset with us. We were surprised and relieved when they sent it around to everyone in the company as a model of how to use wikis and blogs. It was something they had been thinking about trying to do, but hadn’t. Be the leader.

3. Show them the money

Ultimately, it is all about the bottom line. Mark Hurst has written a no-holds-barred analysis of how much it is all about the bottom line. Your central argument has to be “you will make more money.” Sure, you may be more interested in free culture, collaboration, or maximizing mindshare, but someone in the decision process will need to be convinced that it will increase sales, or at the very least that it won’t loose them money.

4. Pitch it with facts

Use case studies to argue with facts. It also helps for them to see that other reputable publishers have licensed books Creative Commons. O’Reilly has some a study on an Asterisk book that we used very effectively.

http://radar.oreilly.com/archives/2007/06/free_downloads.html

The Asterisk book sold 19k copies over two years (about what comparable books from O’Reilly were selling), but was downloaded 180,000 times from *one* of the 5 sites that mirrored it.

Also consider google as arbiter:

Results from google search breakdown of references to the two books in the oreilly case study (at the time of negotiation, early 2008):
asterisk: 139,000 references in 2 years (2005-2007), or 70,000 per year

understanding the linux kernel, 42,000 references in 7 years (2000-2007), 6,000 per year

So there was 10x the press/blog/reference/hits for the CC licensed book.

And explain the the 75/22/3 breakdown:

“David Blackburn, a Harvard PhD candidate in economics, published a paper in 2004 in which he calculated that, for music, “piracy” results in a net increase in sales for all titles in the 75th percentile and lower; negligible change in sales for the “middle class” of titles between the 75th percentile and the 97th percentile; and a small drag on the “super-rich” in the 97th percentile and higher. Publisher Tim O’Reilly describes this as “piracy’s progressive taxation,” apportioning a small wealth-redistribution to the vast majority of works, no net change to the middle, and a small cost on the richest few”

and more here: http://tim.oreilly.com/pub/a/p2p/2002/12/11/piracy.html

And make the argument that of those who get the book for free, most of them wouldn’t buy the book in the first place. And in that group, there will be a small percentage of converts who will then go out and buy a hard copy of the book for themselves, or as a gift. This percentage of converts more than compensates for any loss in sales due to the free version.

5. Identify your advocates & the decision maker

Different publishers have different agent/editor structures, but in our case, we were working with an excellent Acquisitions Editor, who quickly understood our project, from the concept of the book, to the importance of Creative Commons. We convinced him, and he then convinced the Publisher.

Figure out who in the organization is the decision maker on the issue. Often this is going to be the Editor-In-Chief, or the Publisher. Figure out who the boss is, and figure out what their interest is in it. Know their motivation. Are they conservative? Push the profit potential. Are they known for groundbreaking books? Push the “new-ness” of the strategy. etc. In our case, we pushed profit potential, synergies (see below), bloggability, and newness/coolness.

6. Build partnerships and make CC plans

Early on a colleague put us in touch with Adam Hyde of FlossManuals.net, an social entrepreneur who has created a community based open source documentation site. We saw the huge potential of the Creative Commons license to “translate” the book from the Adobe Creative Suite to GIMP, Inkscape, and the other FLOSS applications; and because of the way their system works, it would then be translated into Farsi, Brazilian Portuguese, Spanish, etc. Showing this very concrete example of a tangible way that Creative Commons license would increase the book’s impact helped the Publisher see the power of the CC license.

7. Write it on a wiki.

Pre-emptively license it CC. Write your book on a wiki before you begin negotiations. Give the wiki a CC license. The wiki, or some other electronic version, is a different work, and therefore if you end up unable to convince the publisher, at least the wiki is CC. Other authors we spoke to simply published their manuscript on a wiki and gave it a CC license. While a lawyer might be able to give you an opinion about whether you can post a manuscript for a book and CC license that manuscript retroactively, I think it is safer to pre-emptively license your wiki.

8. Provide sample verbiage

Make it easy for them. Give them the verbiage. Some legal departments are going to rewrite the contract. Others are going to create a rider. Cory Doctorow was kind enough to provide us with the verbiage his agent wrote: http://www.boingboing.net/2007/03/20/model-contract-claus.html . This is the really simple language we ended up using:

“Publisher agrees to add the Creative Commons license designation to the Copyright page of the Work.”

This isn’t perfect, and we did have some further conversations when it came time to actually layout the title page. We probably could have been more specific about which license, but this is what their legal agreed to, and considering we were doing a CC-BY-NC-SA, which is the most restrictive, we were not super worried.

9. Do your CC homework

Allay any of their fears by doing your homework, and answering their questions. One of the issues that came up was the inclusion of (C) images in our CC licensed work. The legal department thought that might mean that we were infringing on the (C) of the images, forcing them to be CC. Similarly, we had concerns that the Public Domain images might be restricted by the CC license on the book, something known as Commons Enclosure.

After a number of phone calls and emails we got confirmation that in fact this was not true. Nathan Yergler of the Creative Commons Foundation wrote us to say

“You can use a copyrighted work, assuming you have the rights to do so (either under fair use or explicitly negotiated), in a CC licensed work so long as you point out the exceptions in the license notice. This is effectively what Creative Commons does with our website — see the footer text where it states “except where otherwise noted…”

And as I mentioned on the phone, Creative Commons can not offer legal advice or opinions and this should not be interpreted as such.”

Of course we could include (C) images in a CC book, we simply had to state that they were (C). Likewise, we stated on the front page of the book (right below the CC declaration) that all images in the book were Public Domain unless otherwise noted. The lawyers liked this.

10. Be patient

It will take a while. Keep writing on the wiki, and move ahead planning on your successful negotiation. Legal departments move very slowly. It took so long, I don’t even remember the dates. At least 6 months. But it took longer to write the book, so it didn’t hold us back at all! It will be worth it.

More links and info:

Digital Foundations:
http://www.amazon.com/Digital-Foundations-Introduction-Design-Creative/dp/0321555988

Article about Cory Doctorow’s successful use of CC:
http://www.locusmag.com/Features/2007/09/cory-doctorow-freekonomic-e-books.html

Example clause of CC contract:
http://www.boingboing.net/2007/03/20/model-contract-claus.html

CC info, a case study:
http://radar.oreilly.com/archives/2007/06/free_downloads.html

The 75/22/3 breakdown:
http://tim.oreilly.com/pub/a/p2p/2002/12/11/piracy.html

(C) in CC works

A while ago I wrote Nathan Yergler of the Creative Commons Foundation about the logistics of including (C) work in a CC book? Amazingly I couldn’t find any guidance about this on their site, or elsewhere. It seemed like something you could obviously do, but the publisher’s legal dept had questions. So Nathan answered them:

Hey Michael —

Thanks for following up on this via the phone today. I talked to some colleagues, and generally the situation is this:

* You can use a copyrighted work, assuming you have the rights to do so (either under fair use or explicitly negotiated), in a CC licensed work so long as you point out the exceptions in the license notice.
This is effectively what Creative Commons does with our website — see the footer text where it states “except where otherwise noted…”

* With respect to the digital version of your book that you were asking about, you would typically negotiate rights for digital redistribution along with the rights to use the copyrighted works in
the first place. Whether you have the rights to redistribute the pictures isn’t impacted by the CC license, or the fact that its included in a CC licensed work.

And as I mentioned on the phone, Creative Commons can not offer legal advice or opinions and this should not be interpreted as such.

Hope this helps, and let us know if/when your book is released under a CC license; we’d love to mention it on the CC blog.

Nathan

Brooklyn Museum goes CC-NC

There is a fair amount of legalese, but it seems that the Brooklyn Museum is releasing images of all works in their collection with a CC-NC license.

As they say, there are some hiccups:

The Brooklyn Museum is currently researching works that are protected under copyright and contacting artists for permission to use their works. If you can provide contact information for the artist or his/her estate, please contact us.

See Rights and Reproductions for information on licensing text or images for reproduction.

While I am disappointed that they didn’t go full on CC-BY, I have to say I am impressed that the fees for the NC use are *really* clearly defined, and really reasonable in comparison to some of the other Museums we have interfaced with.

MiniBookExpo to get books to bloggers (in Canada)

Its only in Canada for the moment, but MiniBookExpo is a service to get books to bloggers for review.   Something we have thought about too.

 

The Rules

 

  • Claim It.

    * watch for a book you want
    * click through to claim it
    * make sure it’s not already claimed by someone else
    * leave a comment to claim it (max 2)

  • Get it.

    * we’ll confirm you claimed it in the comments.
    * then email you for your address
    * send me your address
    * Canada Post will bring you your book.

  • Read it.

    * can you really say anything if you haven’t read it?

  • Blog it.

    * Post something about the book within a month of getting it
    * include a link to the publisher and the author if possible
    * if you don’t have a blog, send me your review & I’ll post it here for you

Digital Foundations wiki is open for editing

The wiki, at wiki.Digital-Foundations.net is ready for editing. We have posted the table of contents and the first three chapters.  The chapters will be open for editing for two weeks. The plan is to post three chapters every two weeks.

You will need to create a user account and login (upper right hand corner of the page.)

We thank you in advance.

Which book cover design do you like best?

Here are the three first round sketches. Which one do you like best? Which one would you pick up in the bookstore? Which one would you assign in your class? Vote below, post comments to the post, or email additional feedback to authors AT digital-foundations DOT net.

If you are really hardcore, we have attached the Illustrator Files in a .zip file here.

Which book cover design do you like best?

  • #2 Blocks (33%, 11 Votes)
  • #1 lowercase “f” (30%, 10 Votes)
  • #3 All Text (21%, 7 Votes)
  • #4 Tilted Rectangle (15%, 5 Votes)

Total Voters: 33

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In reverse alphabetical order

#1, lowercase “f”

Curly f - Digital Foundations Cover

#2 Blocks

Blocks - Digital Foundations Cover

#3, All Text

All Text - Digital Foundations Cover

#4 Tilted Rectangle

tilted rectangle

Which book cover design do you like best?

  • #2 Blocks (33%, 11 Votes)
  • #1 lowercase “f” (30%, 10 Votes)
  • #3 All Text (21%, 7 Votes)
  • #4 Tilted Rectangle (15%, 5 Votes)

Total Voters: 33

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References for chapter design + page layout

Here are some of the references we are looking at for Chapter design and page layout. We need it to stay somewhat standardized, in order to streamline the layout process (each page cannot be completely different – would take too long and would probably be disruptive to the flow of the chapters.)

We are working around a genre of software textbooks. They have instructions and screenshots. We will be adding better content, and additional visual references. But we will still have numbered steps and screenshots in part of the chapter. The best in class (design wise) is Adobe’s Classroom in a Book series:

Adobe CIB

We are particularly enamored of Ellen Lupton’s Thinking With Type, for its ability to mix teaching with history. And for showing over telling. She shows good design in the way the book is designed and laid out. Some of my favorite spreads are here (space and calmness at begging page, use of gutter as secondary information zone, symmetry and splitting the page up into quadrants, assymetry and splitting the page into quadrants):

Ellen Lupton’s Thinking With Type Ellen Lupton’s Thinking With Type Ellen Lupton’s Thinking With Type Ellen Lupton’s Thinking With Type

Other points of reference are some of the layouts from Kimberly Elam’s Grid Systems

Kimberly Elam’s Grid Systems

Also always relevant is Ellen Lupton and Abbot Miller’s, ABC of Bauhaus

Ellen Lupton and Abbot Millers

References for cover design

These are some of the cover references we are working with.  The scanner wasn’t working, so I used the digital camera…

El Lissitzky and Kurt Schwitters designs for Merz:

El Lissitzky and Kurt Schwitters

George Grosz and John Heartfeld’s dada man / compass collage (circle triangle baseline):

George Grosz and John Heartfeld

Flickr

So…I went searching through Wikimedia Commons to find copyright-friendly images (mostly images in the public domain) we might be able to use in our book. If there’s anyone out there who wants to help out on this search, I’ve started my own collection for us on Flickr. It’s here.

You can help! Either post images to Flickr and tag them with “digital_foundations” (let us know you did this) or sign into our account and add images to our database. Here is the login information on the account:

user: digfndtns@yahoo.com

pass: icanhasit

because…we can has it. yes. x

Image$

Here are the notes of a day I spent looking around for image rights:

First, I started on the Smithosonian

and thought that I would begin by searching Smithsonian and adding to my collection…but then I found their rights and reproductions page

and thought about looking at Moma’s site instead. Here’s what they listed:
All requests to reproduce works of art from MoMA’s collection within North America (Canada, U.S., Mexico) should be addressed directly to Art Resource, Scala’s New York representative, at 536 Broadway, New York, New York 10012. Telephone (212) 505-8700; fax (212) 505-2053, requests@artres.com, www.artres.com.
>OK, so I left a message with allison on Thursday and then I talked with Kerry on Friday.
212 505 8700

She said, roughly, we were probably looking at something like $250 an image and that we may also have to pay more $$ to clear w/ artist estate such as vaga, artist rights society, etc.

I sent to her the title of the textbook, print run, list of images we want.

She said that “use is use” of a photo or of a painting or even of a photo of a painting; ie. there is no “fair use”.

So that seemed sort of bleak without a budget for images. Then I checked out Fischinger’s website to see what we could dig up there. We were hoping for just one still frame of any of his works. I called the number on the site and spoke with an woman who made me repeat my phone number eight times before she was able to decipher that my LA-based phone number starts with area code 323 and has only seven digits following the area code. She took my number and said that cvm will call me regarding Oskar Fischinger, but now it’s been four days and the phone isn’t ringing. In a way, it probably doesn’t matter – they would want money, I’m sure, and we don’t have any.