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  • From: wiki_tomos <wiki_tomos AT>
  • To: cc-licenses AT
  • Subject: Re: [cc-licenses] If a middleman gives or sells a "by" licensed image...
  • Date: 14 Sep 2007 19:45:01 +0900

Hi, Jen. I am sorry about the confusion. You are correct -
the Miscellaneous section is indeed identical between by and by-sa.
But the explanation of my interpretation remains basically the same.
Remove the sentense "If you look at the -by-sa license, ... "
from that email, and the rest can stand on its own.

>If so, how is that different from the "by-sa" license?

The key difference between -by and -by-sa is that with a -by license the
MiddlemanGuy is allowed to license his part of the derivative work
under any license whatsoever, because the OriginalAuthor did not require
the MiddlemanGuy to share alike, whereas with a -by-sa license,
the MiddlemanGuy has to license his part under the same or other
equivalent license. (Again, at least that's how I understand it).

>Does the "by" license mean that every future generation of work that
>includes an element from a previous generation of work requires an
>attribution back to whichever artist introduced that element originally?

My answer would be yes, in many cases, with some footnotes.

<footnote 1:>
If, say, FifthGenerationWork includes the OriginalAuthor's creative
expression, the Client who wants to use it has to attribute the
the creator of the FirstGenerationWork. CC-by is the only license offered to
the Client.

Not any "element from a previous generation of work" would result in the
obligation to attribute the OriginalAuthor, though. Non-creative element does
has to do with a copyright license, so I think the element
inhereted from the FirstGenerationWork should be minimally creative as
to give it a copyright protection. Also, obviously, I think elements from
people other than the OriginalAuthor, inhereted in whatever way, does not
create the obligation to attribute the OriginalAuthor.

If it is very small portion, there might be a good chance that
the Client can go for a fair use.

Another exception has to do with the case in which there is no
attribution to the OriginalAuthor. As you know, -by licenses
have the following restriction:

"If You create a Derivative Work, upon notice from any Licensor
You must, to the extent practicable, remove from the Derivative
Work any credit as required by clause 4(b), as requested."

(taken from

So there is a possibility that the Client of a FifthGenerationWork
does not know, and cannot be expected to know that the OriginalAuthor
created some elements in the work. In that case, I suppose it is
somewhat likely that the Client cannot be blamed for not attributing
the OriginalAuthor when he makes use of the FifthGenerationWork. But then,
the Client might simply assume that he does not have license to make
any use beyond fair use and some other statutorily defined use with
regards to that unattributed elements. It is like some orphan work
is in the FifthGenerationWork.


Two related but different topics:

Is it surprising that, according to my interpretation, the
CC-by-sa license works differently? In case of CC-by-sa, the
whole derivative work is under whichever license the MiddlemanGuy
chooses. OriginalAuthor seems to give permission the MiddlemanGuy
to release the OriginalAuthor's creative expressions under the
same or an equivalent license. And because of that, CC-by-sa 2.0'd
work, a derivative of which can be licensed under CC-by-sa 3.0,
and then if you create ThirdGenerationWork from it, it could be
released under GFDL, when/if Creative Commons designates GFDL
as a "Creative Commons Compatible License" as defined in the
1.c. ( )

In other words, while all the creative expressions of the
OriginalAuthor remains under CC-by license, and nothing else,
in case of -by'd work, some portion of the expressions become
available under some different licenses in case of -by-sa'd work.

(Discussion about this topic is here: )

Another one. Is there a possibility that if the FifthGenerationWork
does not contain any creative expression of the OriginalAuthor, the
author of the FirstGenerationWork, the Client who uses the fifth gen. work
must avoid giving attribution to the OriginalAuthor? Could the attribution
in that case constitutes "reverse passing-off"? Does this mean the Client
has to investigate which elements are inhereted from which author, and
determine if the inhereted elements are in any way creative enough to
make it copyrighted? That sounds too much work to me, and I hope the
answer is no.

But I don't know.

This is not a question unique to the -by licensed works, but the
same can be asked about the -by-sa'd works.

To make the matter even more complicated, in case of -by-sa,
it seems possible to argue that the FourthMiddlemanGuy who
created FifthGenerationWork and released under CC-by-sa-2.5
is obligating the Client to keep the attribution, and ommission
of the attribution to the OriginalAuthor constitutes a bleach
of contract term, resulting in the termination..

I currently have no answer to this question. But I can say that
this is not a hypothetical situation. I see cases like this,
in which OriginalAuthor's contribution is zero in a FifthGenerationWork
or FiveHundredthGenerationWork. You can find them on Wikipedia.
Wikipedia is currently licensed under GFDL, but there has been
discussions that CC-by-sa is a better license for them, and they
might switch the license if the currently ongoing drafting of the
next version of GFDL opens up such a migratory path.



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