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cc-licenses - Re: [cc-licenses] ShareAlike extent

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Subject: Development of Creative Commons licenses

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  • From: James Grimmelmann <james AT grimmelmann.net>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] ShareAlike extent
  • Date: Mon, 21 May 2007 10:23:20 -0400

Will Martin wrote:
> All,
>
> Hiya. I've got some questions about just how the ShareAlike clause
> works when we're talking about incorporating photos into web pages as
> backgrounds.
>
> I've put together a test case to illustrate. I started with a
> BY-NC-SA licensed photo on flickr,[1] and used a portion of the photo
> as a background in a web page.[2] Note that the page displays one of
> ten Shakespeare quotes at random when you load it, so it won't be the
> same for every visitor. So here are my questions:
>
> 1) Does the ShareAlike clause apply to the HTML and CSS?

It probably does not. There's been a run of cases holding that inline
linking and framing don't directly infringe copyrights. I don't believe
that these cases have explicitly ruled on the derivative works issue,
probably because it seemed like a stretch even to the plaintiffs.

> 2) Does the ShareAlike clause apply to the other images in the page?

I think that it does; your particular picture puts multiple images
together into something that's supposed to appear seamless. You need to
license the new *image* as a whole under the appropriate license (here
BY-NC-SA).

> 3) One image bears text saying "Who needs a typewriter?" Does the
> ShareAlike clause apply to the font I used to create the text in that
> image? I don't think it does, I just want to know precisely where I
> stand.

My sense is no. Typefaces are generally considered uncopyrightable.

> 4) The Shakespeare quotes are in the public domain. Does the
> ShareAlike clause apply to them in this context? If I copy and paste
> a quote from this web page, does the ShareAlike clause apply to
> whatever I paste it into?

It does not apply to them because there is probably not a derivative
work as to the whole work. Your example comes, I think, fairly close to
the line between "derivative" and "not a derivative" -- the combination
of pictures is one, but not the combination of pictures and quotation.

I'd point out that the SA requirement applies to derivative works as a
whole, rather than to particular elements. If I use half of a picture
in a work that SA in some other element requires me to license SA,
there's no requirement to relicense the entire picture under SA just
because it was used to create the combined work.

> 5) I wrote some PHP to pick a quote each time the page is loaded.
> That code executes on the server, and never appears in the web page.
> But it is part of the file. Does the ShareAlike code apply to the PHP
> code?

No; copyright subsisting in computer programs is generally distinct from
copyright in their outputs.

> 6) If I had linked my PHP code to an external PHP file produced by
> somebody else, would the ShareAlike clause have applied to that
> external file? (I didn't link to anything in this case, but it'd be
> nice to know, since that's common practice.)

No, since the PHP code wasn't under SA initially. If you'd started with
SA PHP code and linked someone else's PHP file, well, that would have
been a good reason to use a software-specific license whose definitions
would have been clearer.

> 7) If I had used this as a background image in a site allowing
> user-contributed content, such as a forum, would the posts by my users
> fall under the ShareAlike provision too?

For the reasons given above, probably not.


All of the above are my unconsidered opinions, and definitely not legal
advice.

James




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