On 8/20/07, David Gerard <dgerard(a)gmail.com> wrote:
The licenses are precisely as viral as copyright is.
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.
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.
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
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
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.