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My daughter is in a musical theater program that sells tickets for its end-of-term production. Can I use a CC-NC licensed image to promote the production on my social media accounts? I am not affiliated with the program and am not promoting it on the program's behalf.

Argument for: I am not compensated in any way if the program sells more tickets and I have no commercial benefit.

Argument against: My advertising of the production does have a clear financial benefit for the program itself as it sells more tickets.

  • By image do you mean a picture of the production or stage or something related? – Putvi Jun 6 '19 at 18:26
  • I was thinking of either photos of other productions of the same play of "fan art" related to the play. (In the former case, I admit that I had not considered whether the person making the photo available in turn had the right to post it based on the sets; I was only going off the license for the photo itself.) – DocMax Jun 6 '19 at 18:32
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Possibly Not OK

The actual Creative commons license (Specifically the CC-BY-NC 4.0 license) says:

NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.

An advertisement for anything for which a fee is charged is "primarily intended for or directed towards commercial advantage". I believe that any such use would violate the license.

The license says nothing about who receives any monetary compensation. In particular, it does not limit "commercial" to case where the re-user gets monetary compensation or commercial advantage.

The Creative Commons Wiki page on "non-commercial" says:

The definition is intent-based and intentionally flexible in recognition of the many possible factual situations and business models that may exist now or develop later. Clear-cut rules exist even though there may be gray areas, and debates have ensued over its interpretation. In practice, the number of actual conflicts between licensors and licensees over its meaning appear to be few.

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The definition of NonCommercial depends on the primary purpose for which the work is used, not on the category or class of reuser. [4] Specifically, a reuser need not be in education, in government, an individual, or a recognized charity/nonprofit in the relevant jurisdiction in order to use an NC-licensed work. A reuser that is not obviously noncommercial in nature may use NC-licensed content if its use is NonCommercial in accordance with the definition. The context and purpose of the use is relevant when making the determination, but no class of reuser is per se permitted or excluded from using an NC-licensed work.

Whether the copyright holder would 1) notice, 2) object, and 3) bring suit is another question. Whether such a suit would be successful is also uncertain, in the absence of case law. I can't find any online record of any such suit, successful or not.

In the Creative Commons study Defining Noncommercial it is said that

In sum, the decision-making process is not clear-cut.

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However, virtually all creators agree that a noncommercial use is one in which “no money changes hands.” Many then add that for a use to be truly noncommercial, there should also be no indirect commercial gain.

(Pages 32, 33)

The motive (or apparent motive) of the person using the CC-licensed content will probably matter. If the e-user was doing it to advertise the show, because s/he thinks that presenting such a show is a wonderful thing for the community, and is acting as a sort of unpaid PR department for the show, I think that would be a commercial use. If s/he is merely announcing the event, that is different.

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  • The definition of NonCommercial depends on the primary purpose for which the work is used is the part that's tripped me up. My purpose in using the work is to say "hey my kid's in a show" which itself is non-commercial. The fact that someone else benefits is incidental... and yet someone else does benefit. – DocMax Jun 7 '19 at 0:27
  • @DocMax I see your point. if you were doing it to advertise the show, because you think that presenting such a shoe is a wonderful thing for the community, and are acting as a sort of unpaid PR department for the show, I think that would be a commercial use. If you are merely announcing the event, that is different. In any case, I think the chance of an actual suit is low, even if this is technically a violation. – David Siegel Jun 7 '19 at 0:34
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    @David Siegel how are advertising a show and announcing a show different ? – George White Jul 7 '19 at 3:15
  • @George White a tricky distinction to draw. If I say.on my personal blog "I just attended X and I really enjoyed it" That would not, I think, be advertising. The OP seems to have done rather more. I am not sure just where to draw that line, or where a court would draw it. – David Siegel Jul 7 '19 at 16:04
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You can use it to promote something as you said. You just can not have a commercial interest in that thing.

You should be fine if you are not connected to the play. I doubt anyone is going to get that worked up about your social media posts, but if they do, just take it down and don't worry about it. It's too small of a thing to argue over.

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  • Thanks. I agree that a social post to promote a local kids' play would garner any attention. I was more surprised that I had no idea and could not find anything clear about the extent of "non-commercial". – DocMax Jun 6 '19 at 19:38
  • Yeah, I get what you mean. Sometimes it's just a lot for an organization that makes those licenses to go into every situation that could arise, so they count on people to use their judgement (not saying you didn't). – Putvi Jun 6 '19 at 19:42
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    This answer purports to give a definite answer without quoting the actual license or analyzing why its terms do or do not support the answer. It looks like pure opinion or assumption. Any research done is not visible. – David Siegel Jun 6 '19 at 23:34

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