It is usually clearly regulated which images and fonts may be used on the Internet for purely private or commercial purposes. However, the boundary between the two areas is anything but clear. We clarify where commercial use begins and what needs to be taken into account when using or offering content from the Internet.
The basic idea is very good: Creative minds put pictures, texts or fonts on the net for use by others. After they voluntarily share their intellectual property with third parties, they naturally determine the rules by which Internet users may use it. Who is allowed to use what and how is defined in the license terms, which you must adhere to. So far, so clear.
In practice, however, this is all a lot more complicated. While license agreements such as the six different Creative Commons (CC) facilitate the sharing of intellectual works on the Internet by reconciling national law, international custom, and the vastness of the World Wide Web, in practice, all of this is a bit more complicated than it seems. But while requirements such as "attribution" and "no derivative works" are self-explanatory, one thing raises more questions than it answers: commercial use.
Table of Contents
Non-commercial and commercial use by definition
A use is commercial if it is aimed at the following, Make gains. Conversely, the Creative Commons Corporation explains what "non-commercial" means in its definitions as follows: "Non-commercial means not primarily directed toward a business advantage or monetary compensation. The exchange of licensed material for other material protected under copyright or similar rights by digital file sharing or similar means is not commercial in the sense of this Public License, provided that it is used in connection with it No monetary compensation takes place."
Commercial use is when it is aimed at making a profit
This sounds very plausible at first, but it doesn’t come close to clarifying all the cases that can arise in practice. Even lawyers have a hard time with a clear definition, because there is no clear dividing line between non-commercial and commercial use.
The Creative Commons Corporation was founded in San Francisco in 2001 to make it easier for authors, artists, scientists and teachers to use content on the Internet. So that permission does not have to be obtained from each individual author, the individual licenses make it clear which use is permitted.
Creative Commons and commercial use
There is the possibility that the author waives all rights with the so-called zero license. The other CC licenses provide as a minimum the naming of the author and vary in the type of distribution, permission to modify and commercial use. The latter is indicated by a crossed-out dollar or dollar sign. Euro sign clarified.
But this does not cover many cases. Therefore, the (non-commercial) organization in the U.S. commissioned a broad survey among creators and users to clarify what they generally consider commercial or. understand non-commercial use. On some points, there was unanimous clarity. For some, however, opinions diverged both between and within the two groups. Overall, the Creative Commons Corporation considers the assessments of licensors and licensees to be largely similar. However, the providers have usually been more generous in their interpretation than the users.
What is generally understood by commercial and non-commercial use? The (non-commercial) organization in the USA commissioned a corresponding survey among creators and users
One example: the participants agreed that online advertising or uses that earn the user money are commercial. Uses by organizations, individuals, or for charitable purposes, on the other hand, are classified as less commercial, but are not necessarily non-commercial. In case studies, the authors generally tend to identify non-commercial use, especially in the case of non-profit organizations. If it is a question of individuals, on the other hand, the licensors surveyed are more likely to suspect commercial use than the licensees.
What the survey showed: there is more uncertainty than clarity about what is to be considered commercial or non-commercial. While there is consensus on many points, there is a lot of uncertainty in many individual cases.
Attention! Commercial traps with private use
Completely problem-free is usually a purely private use of offered contents. But in times of social media and the like, what is commercial use?. still purely private? If you download a picture to immortalize it in your printed photo book about your last vacation, you are really on the safe side.
When using a downloaded image online, well-disguised commercial traps lurk for (unsuspecting) users:
- For example, anyone whose blog makes even a little Money made, because he has integrated a single small advertising banner, acts commercially. If the licensing requirements only permit non-commercial use, images may not be included without further consultation with the licensor. The placement of the image – whether in view of a banner or in an ad-free article – is immaterial.
- Also an online presence, with which at all No revenue is often classified as commercial. It is sufficient to mention a product or – like 60 percent of all bloggers – to use "Wordpress" as the content management system. Because "Wordpress" appears in the URL – and that is strictly speaking advertising. In this sense, even the most private post in a social medium that offers an advertising platform is taboo. So what happens with Facebook& Co. uploaded must be allowed for commercial purposes.
- Even if there is no advertising involved, the private person can still be Service provided free of charge into the commercial sphere. Namely, if, for example, he writes a newsletter for the neighborhood and uses fonts or images from the Internet for it. Admittedly, a very strict interpretation, but this has also happened before.
For Facebook& Co. applies: Images uploaded and shared on social media must be permitted for commercial use.
A purely private use is not a problem. But those who, for example, mention products or display an advertising banner on their blog are often no longer acting in a purely private capacity
Commercial vs. non-commercial
Since the boundaries are extremely fluid and even a supposedly purely private use has commercial aspects, the problem can only be approached step by step from different angles. The question we ask ourselves is: What can be considered commercial?? The frightening answer – almost everything:
Commissioned work for commercial customers
One of the few cases that are really crystal clear: The customer commissions a sales flyer from a graphic designer or an agency, for which an image is used. This is a commercial use through and through – no need to argue about it.
Private from commercial providers
Is the personal birthday card for a customer considered private? No. Normally, a commercial enterprise can never act privately. Anything, even if it is not for profit, is therefore to be construed as commercial use.
"commercial" from non-commercial entities
Even public corporations and non-profit organizations cannot use non-commercial images or fonts without hesitation. In case of doubt, the type of use can be decisive here and not the general mandate of the licensee, as the court decisions on the lawsuit against Deutschlandradio show.
Private content from private users
As we have seen above, there are very few non-commercial platforms on the Internet. Only a private blog without any advertising and without mentioning a single product can really be considered non-commercial. According to a strict interpretation, any publication on the net is already considered commercial.
Assessment criteria for commercial use
Whether the use is non-commercial or commercial depends entirely on who uses the content, how and for what purpose. If all three areas are of a commercial nature, there is nothing to deny. However, you should also cover yourself if only one of the three points has the character of commercial use. Therefore, before using an image or font from the Internet, check the following points:
Who uses the content? If it is a commercial enterprise, all uses are also assumed to be commercial in nature. Non-profit organizations and private individuals can claim non-commercial use with actions that are not profit-oriented. However, the licensor does not necessarily have to see it the same way.
- Type of use:
How the content is actually used? Even non-profit associations or private individuals can use downloads in such a way that commercial use must be assumed. When this is the case is again a matter of interpretation. Strictly speaking, this is already only the publication itself, at the latest, however, when money is earned with it.
- Purpose of use:
What the content is used for? From a purely moral point of view, there is certainly a difference whether a non-profit organization uses a downloaded photo to promote its own company or to collect donations for needy children. In the case of a charitable purpose, surely very few licensors will want to put obstacles in the way of the users. A written protection is nevertheless meaningful.
What about images from Wikipedia? Or Google web fonts? Are these released for commercial use and can be used simply for own purposes? We have taken a closer look at a few common practical examples:
Basically, the images on Wikipedia are free for commercial use. Uploaded images should be subject to the CC license CC-BY-SA 3.0 or. Be subject to another free license or be in the public domain. Wikipedia has this to say: "So we can’t take a picture that, although we may use, from which we but may not allow others to use it commercially."The license conditions, which can be viewed with a simple click, must be adhered to.
The fonts offered here are mostly as uncomplicated to use as Wikipedia images. In our interview, attorney Wolf-Joachim von Rosenstiel points out that it is in any case debatable whether copyright can exist at all in "simple" fonts. For more information on fonts, see our article What you need to know about free fonts.
Incorrect information on the website
Website operators also cannot always be sure that all images or fonts offered for commercial use on their platform are actually released for that purpose. They protect themselves by placing appropriate notices on their websites, as Fontsquirrel does for example. Attorney Wolf-Joachim von Rosenstiel advises you to secure yourself with the copyright holder or to choose a source that is clear.
Commercial use – this way you are on the safe side:
- Only use content that is explicitly intended for commercial use.
- Contact the author in case of ambiguity and explain the intended use. Most providers are accessible for a separate license agreement.
- In any case, please note the additional license conditions. Authors sue for example also because of not naming or unauthorized changes of their data.
Interview with attorney Wolf-Joachim von Rosenstiel
Wolf-Joachim von Rosenstiel has been admitted to the bar since 1999 and works in the law firm DRC Rechtsanwalte in Nuremberg, Germany. The firm has various practice areas in civil and criminal law, including family, traffic, labor and IT law. He answered our questions about commercial use.
ONLINEPRINTERS Magazine: Commercial use is not clearly defined. Mr. von Rosenstiel, can you nevertheless succinctly sum up what is important from a legal perspective?
Wolf-Joachim von Rosenstiel: It depends on whether the activity in any way pursues economic purposes. As soon as a blogger uses, for example, advertising banners or affiliate links, commercial use is to be assumed, even if he does not make a profit and only covers his own costs. It is therefore to be assumed already with very small business activity of commercial use.
ONLINEPRINTERS Magazine: Can Wikipedia images and Google web fonts be used commercially??
Wolf-Joachim von Rosenstiel: In any case, only the licensing conditions must be observed. The conditions can be easily viewed at Wikipedia and Google. Whether a copyright on "simple" fonts can exist at all is highly controversial, since, due to thousands of years of use of the font, almost everything has actually been there before and thus there is probably a lack of secure authorship.
"the license conditions must be observed"
The Federal Court of Justice (BGH) has classified copyright protection for fonts as possible in principle, but has so far always denied it in decisions due to a lack of major innovations. Exceptions could be, for example, very exotic fonts. The protection of a font as a utility model is possible. Here too, however, in the case of a dispute, it depends on whether this is actually "new", which is not easy for the reasons mentioned above.
However then the copyright infringer is in the burden of proof. In a much-criticized decision in 2000, only the Regional Court of Cologne granted copyright protection to fonts as part of a computer program. Case law of higher courts on this does not exist. With regard to many fonts, it is therefore questionable whether there is a copyright that can be violated.
"The passing on of writings is very often restricted."
ONLINEPRINTERS Magazine: May supplied Windows and Adobe fonts be used commercially without restriction??
ONLINEPRINTERS Magazine: What happens if the provider makes false statements? We think of platforms such as Fontsquirrel, which take the precaution of pointing out that some things are not commercially usable, even if they are supposed to be so according to the license terms.
"Good faith in copyright law does not help against warning letters."
Wolf-Joachim von Rosenstiel: A very difficult topic. In principle, good faith in copyright law unfortunately does not help against warning letters. If this is pointed out, as in the example given, not even a recourse against the platform is possible. In this respect, I recommend limiting yourself to sources where there is clarity and, if necessary, contacting the owners of the rights directly.
ONLINEPRINTERS Magazine: What can I do if I am warned about unauthorized use of content??
Wolf-Joachim von Rosenstiel: When you receive a warning, I advise you never to give a cease-and-desist declaration without checking the factual and legal situation. Many lawyers offer low-cost reviews, which are usually worthwhile.
ONLINEPRINTERS Magazine: What do I have to consider when I offer content myself?? May I offer as a private person for commercial purposes? How do I protect my content from unwanted use??
"Anyone who has an intention to make a profit must register a business."
Wolf-Joachim von Rosenstiel: Copyright law must also be observed in the case of private use, as the local legislation does not make any exceptions or offer any protection. In this respect, millions of users of social networks would be liable to legal action, which unfortunately also happens frequently. Because as soon as someone uses private, unapproved content, for example from social networks, without permission, they can be asked to cease and desist by a lawyer if necessary.
One-time or short-term activities usually fall under hobby and do not have to be registered. However, as soon as you have a concrete intention to make a profit, you have to register a business, you are liable to pay taxes, and thus you are no longer "private".
ONLINEPRINTERS Magazine: Will the new EU directive on copyright also bring changes to the commercial use of content from the Internet??
Wolf-Joachim von Rosenstiel: The new EU directive will only become concrete through national implementation. It is certain that search engines will incur costs for more extensive links, but this could also mean that they will simply omit the paid links. Furthermore, copyright protection will have to be ensured, which will only be possible through very powerful upload filters. Accordingly, protected content can then no longer be published, for example in social networks.
Commercial use: court decision
When it comes to the commercial or. When it comes to non-commercial use of images and other content from the Internet, copyright and competition law are primarily affected. Lawsuits are often filed when license conditions are not respected. So far, commercial use has only been specifically at issue in one case that came to light in 2014: a lawsuit against Deutschlandradio. A photographer sued Deutschlandradio, which had published a photo he had taken on Flickr.com had used an image published under the Creative Commons license CC-BY-NC.
First instance: Regional Court of Cologne, judgment dated 05.03.2014
The Regional Court of Cologne (LG) ruled in the judgment of 05.03.2014, that Deutschlandradio had acted non-commercially within the meaning of the Interstate Broadcasting Treaty (RStV), but did not comply with the NC criteria of Creative Commons despite its public service mandate. The Regional Court of Cologne considers non-commercial use to be purely private, which of course does not apply to a broadcaster. The plaintiff got right and Deutschlandradio was not allowed to use the picture anymore, because There was no non-commercial use.
New judgement: OLG Cologne, judgement from 31.10.2014
However, the Cologne Higher Regional Court (OLG) overturned the ruling almost eight months later, arguing a possible international background. The judgment of the Cologne Regional Court was overturned. The Cologne Higher Regional Court ruled that the use of an image on the website of a public broadcaster no commercial use represents. However, Deutschlandradio was still not allowed to continue using the photo in question. The copyright notice was removed without permission when the image was used. This violated other parts of the license conditions.
Commercial use with own content
The Internet is a large marketplace that invites uploading, downloading, forwarding, sharing and copying. Many an innocent user is not even aware that he becomes the author himself the moment he offers content for downloading. And this has some consequences: