On 8/20/07, David Gerard dgerard@gmail.com wrote: [snip
The licenses are precisely as viral as copyright is. What constitutes a "derivative work" is a matter for the lawyers and courts. If the text is clearly derived from the picture, that'd have to be.
[snip]
I've seen this repeated a lot. It's misinformation, attractive misinformation but misinformation none the less....
When you create a new work which contains my work and you copy and distribute that work you are copying and distributing my copyrighted work along with that whole. Thus, you are subject to the terms and limitations which come along with executing these rights which are reserved under copyright law.
Full stop. We don't need to worry about what a court would consider derivative.
There are extra cases, such as what happens to the whole once you've removed the part I created.... but thats never the question people are asking when this came up.
Now that we've established that you're distributing my copyrighted work and have liabilities and obligations related to that distribution, it would be helpful to know what those are... and thats pretty straight forward:
You can distribute my copyrighted work legally under either of two conditions: (1) Your use constitutes fair use/fair dealing under the law, or (2) you have a license from me that enables you to do so.
If neither of these are the case your distribution is a copyright infringement.
I'm of the impression that this question comes up in cases which are not argued to be fair use. So I'll ignore that one. Free content licenses, obviously, do not limit fair use. If you really have a strong fair use claim: Enjoy.
(2) is the interesting one. You are licensed for redistribution of my copyrighted content. To understand what you are able to do we must consult the text of the license.
Here, the SA terms *appear* to be fairly straightforward. http://creativecommons.org/licenses/by-sa/2.5/legalcode
Were I to argue this in front of a court I'd point out in order to avoid being subject to SA the combined works must be "separate and independent".
The license makes numerous examples of cases where complete distinct articles are aggregated, which is certainly a different use case than a stock photograph being made an integral part of a new document.
"Collective Work" means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves,...
The license goes on to specifically state that synchronizing video to music or sound is always derivative under the license. I just do not see how anyone could consider synchronizing still text to still image be materially different.
That said, if you want the copyleft behavior for you images in this sense, I can not currently recommend the Creative Commons ShareAlike licenses.
Lawrence Lessig has stated that "share alike" does not cross the picture frame boundaries. Even if that isn't what the CC licenses say if the director of the CreativeCommons wants that behavior the license can be revised to achieve it in the future.
The same claim, that copyleft ends at the edge of the image, was made about the FDL and that position was easily and firmly rejected by the FSF. Like CC-by-sa I believe the language of the FDL supports this position, and like my argument above... if it does not the license can be revised to reflect the desired behavior.
This shouldn't be considered a bad thing. I certantly don't.
Copyleft exists for several very good reasons.
In the context of images, copyleft is almost completely ineffective if it doesn't expand to cover to cover the entire document when someone combines text with a copylefted image.
This is because the overwhelmingly predominant commercial usage of images is stock photography. The commercial value in a photograph is the ability to use it in a document. The ability to keep touched up version of the image has almost zero commercial value.
This talk of commercial value is very important because the purpose of copyleft is to help expand the pool of free works by using the pool of free works as an incentive to free more works.
For example, I'm a teacher making a guide for my students. I could free my document, or I could choose not to free my document. Even if I have no immediate plans that freeing the document will obstruct I'll often choose not to free the document because *maybe* just *maybe* I'll someday find a way to sell it for lots of money.
Now, if I can choose between paying hundreds or thousands of dollars to Getty images and keeping my work non-free.... or using some copylefted images but being obligated to free my work, the balance shifts and I'll probably be much more willing to free my work.
Not to mention the numerous cases where an authors employer will not allow them to free the work, but is more than willing to accept outside license obligations forcing them to free their work. (This is very common in the software world).
As a photographer myself, a lot of my motivation for freeing my work comes from the fact that my work will help expand the pool of free work. Were it not for this incentive, I'd be far more inclined to maximize my stock photography income by refusing to release my work under liberal licenses.
A single photo of mine released to the world has little value, to me or anyone else.. but if it acts as leverage to free even a single other work then I, and everyone else, profit.