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cc-licenses - Re: [cc-licenses] If a middleman gives or sells a "by" licensed image...

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Subject: Development of Creative Commons licenses

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  • From: Terry Hancock <hancock AT>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: [cc-licenses] If a middleman gives or sells a "by" licensed image...
  • Date: Sat, 15 Sep 2007 12:48:19 -0500

Jen Gagne wrote:
> 2) MiddlemanGuy comes along and takes a copy, making note of the
> licensing terms. He makes a few token changes so it's considered a
> derivative image.

ISTM, This is the sticky part. "A few token changes" (e.g. cropping,
adding a watermark, etc) are not sufficient for the work to be safely
considered a "derivative" rather than "a copy".

If the work is significantly reprocessed so that it *can* be considered
a derivative, then I believe your other assumptions are correct.

I disagree with "wiki_tomos" on this point, because the sense of
derivative here means that there is no separable "original work" and
"added changes" -- you just have one work which is the result of two
creative acts.

If, OTOH, the end user can extract a portion of the original work from
your modified work (i.e. it *is* separable), then the CC-By applies to
that excerpt. I suspect this is what "wiki_tomos" is imagining, perhaps
due to your "token changes" wording -- but it is my opinion that in that
event you haven't successfully created a "derivative" "new work".

As a practical real world example, consider Dover Books. They publish a
lot of public domain material. The books that they publish are of course
protected by copyright -- you can't copy them wholesale. But the content
of the books is PD. Thus, if you simply use the books as a vehicle to
recover the original PD material, then the Dover copyright isn't going
to apply -- because you aren't using Dover's creative contribution,
you're just accessing the copies of PD material.

A similar situation applies to CC-By. You can of course claim copyright
in the collection or the formatting or other aspects of your
presentation. But when a user accesses the original CC-By work via your
presentation, it is the original CC-By license that applies to them, not
yours. (As a sidenote, your requirement to attribute the original author
helps make this feasible).

OTOH, a true derivative work is going to be something like a total
transformation of the original. For example, if you create a needlepoint
pattern based on a CC-By photograph or drawing, then your pattern is
your own to sell and license as you like. In order to recover the
original CC-By work, the end user would have to reverse engineer your
pattern to get the original photographic pixels. That's a non-trivial
task, and in practice, they'll just get the photograph from the source
if it's at all possible.

And that's where the SA module steps in: under CC-By-SA, the needlework
pattern would have to be CC-By-SA licensed, just as was the original


IANAL/TINLA, of course.

Terry Hancock (hancock AT
Anansi Spaceworks

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