Case law on copyleft cause for images

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Case law on copyleft cause for images

Federico Leva (Nemo)
Hirtle summary of
<https://carrollogos.blogspot.com/2016/04/us-court-correctly-interprets-creative.html>
on Drauglis v. Kappa Map Group, also covered in
<https://en.wikipedia.org/wiki/Creative_Commons_license#Drauglis_v._Kappa_Map_Group.2C_LLC>
<https://www.technollama.co.uk/us-court-interprets-copyleft-clause-in-creative-commons-licenses>

Nemo


--------  Messaggio inoltrato --------
Oggetto: RE: [SCHOLCOMM] By-SA and By-NC-SA
Data: Sun, 1 Oct 2017 22:31:34 +0000
Mittente: "Peter B. Hirtle" (via scholcomm Mailing List)
<[hidden email]>

Eric, things may be a little clearer than you suspect.  Let’s parse your
hypothetical:

“So imagine you are making a book from two chapters, one SA and the
other SA-NC.  The book (a work in its own right because of a creative
cover)…”

That isn’t quite right (though it doesn’t matter for the rest of your
example).  The cover itself is likely to have enough creativity to have
its own copyright, but the book as a whole will only have its own
copyright if it is itself an “original work of authorship.”  This would
mostly involve some creative selection or organization of the material.
Slapping a copyrighted image on top of two separately copyrighted works
is, in my non-legal opinion, unlikely to be enough to be considered to
be a separate “original work of authorship.”  The question would be
whether someone could publish the same two chapters but with a different
cover on it, and I think in most cases they could.

“…, has to be distriibuted under the  more restrictive license (SA-NC)
because it staples together the two chapters.”

This is incorrect.  You haven’t created an adaption of the original
material, so you are not required to use the SA license.  Michael
Carroll has a good discussion of this in his blog post on a relatively
recent court case:  see
https://carrollogos.blogspot.com/2016/04/us-court-correctly-interprets-creative.html.
  In this case, a commercial publisher used a SA photograph on the cover
of its street atlas.  It slightly cropped the image, but the court
concluded that the change was not enough to create an adaptation and
hence the publisher was not required to distribute its atlas with an SA
license on it.  The publisher did comply with the attribution
requirements of the license.

In your hypothetical, if you decided to abridge the chapter, then you
would be created a derivative version and would have to apply the SA
license to the book.  But so long as you follow the other terms in the
CC license, you can put any license you like on the book as a whole
(even if the cover image is the only thing actually being licensed by
you).  You could even omit a license on your contribution.  Just don’t
distribute it commercially.

“But it has to do two more things:

1.     Add separate license statements for each chapter.”

Yes, I am postulating that you are complying with the attribution and
non-commercial elements of the license, which are not dependent on
whether or not the works are adapted.

2. The chapters must be separable (the staples can be easily removed)

No, the physical format does not matter.  Copyright matters are separate
from physical formats.  All you need to do is include the original
license and attribution with each chapter.

Peter Hirtle

From: [hidden email]
[mailto:[hidden email]] On Behalf Of Eric Hellman
Sent: Friday, September 29, 2017 5:24 PM
To: [hidden email]
Subject: Re: [SCHOLCOMM] By-SA and By-NC-SA

The comments fro Billy Meinke and Peter Hirtle reflect my reality that
there seem to be only gray areas when it comes to copyright.

The 3.0 license defines "collections" and "adaptions".

   1.  "Collection" means a collection of literary or artistic works,
such as encyclopedias and anthologies, or performances, phonograms or
broadcasts, or other works or subject matter other than works listed in
Section 1(g) below, which, by reason of the selection and arrangement of
their contents, constitute intellectual creations, in which the Work is
included in its entirety in unmodified form along with one or more other
contributions, each constituting separate and independent works in
themselves, which together are assembled into a collective whole. A work
that constitutes a Collection will not be considered an Adaptation (as
defined above) for the purposes of this License.
and in doing so makes explicit how to deal with the SA vs SA-NC.

So imagine you are making a book from two chapters, one SA and the other
SA-NC. The book (a work in its own right because of a creative cover),
has to be distriibuted under the  more restrictive license (SA-NC)
because it staples together the two chapters. But it has to do two more
things:
1. Add separate license statements for each chapter.
2. The chapters must be separable (the staples can be easily removed)

I would make the same argument for illustrations in a website or ebook.
If Mahrya Carncross's colleague's guide is more of a collection than
mix, then she might be in the clear.

https://creativecommons.org/licenses/by-nc-sa/3.0/legalcode

The 4.0 license doesn't have this explicit carve-out for collections,
and appears to me to take a harder line against mixed license
"arrangement" works, but at the same time says that 3.0 licensed works
can be adapted into 4.0 licenses, so that's confusing to this non-lawyer.

https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode

Eric Hellman
President, Free Ebook Foundation
Founder, Unglue.it<http://unglue.it> https://unglue.it/
https://go-to-hellman.blogspot.com/
twitter: @gluejar

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Re: Case law on copyleft cause for images

Fæ
Useful case. Thanks for sharing it here. 


On 2 Oct 2017 6:56 a.m., "Federico Leva (Nemo)" <[hidden email]> wrote:
Hirtle summary of <https://carrollogos.blogspot.com/2016/04/us-court-correctly-interprets-creative.html> on Drauglis v. Kappa Map Group, also covered in
<https://en.wikipedia.org/wiki/Creative_Commons_license#Drauglis_v._Kappa_Map_Group.2C_LLC>
<https://www.technollama.co.uk/us-court-interprets-copyleft-clause-in-creative-commons-licenses>

Nemo


--------  Messaggio inoltrato --------
Oggetto: RE: [SCHOLCOMM] By-SA and By-NC-SA
Data: Sun, 1 Oct 2017 22:31:34 +0000
Mittente: "Peter B. Hirtle" (via scholcomm Mailing List) <[hidden email]>

Eric, things may be a little clearer than you suspect.  Let’s parse your hypothetical:

“So imagine you are making a book from two chapters, one SA and the other SA-NC.  The book (a work in its own right because of a creative cover)…”

That isn’t quite right (though it doesn’t matter for the rest of your example).  The cover itself is likely to have enough creativity to have its own copyright, but the book as a whole will only have its own copyright if it is itself an “original work of authorship.”  This would mostly involve some creative selection or organization of the material. Slapping a copyrighted image on top of two separately copyrighted works is, in my non-legal opinion, unlikely to be enough to be considered to be a separate “original work of authorship.”  The question would be whether someone could publish the same two chapters but with a different cover on it, and I think in most cases they could.

“…, has to be distriibuted under the  more restrictive license (SA-NC) because it staples together the two chapters.”

This is incorrect.  You haven’t created an adaption of the original material, so you are not required to use the SA license.  Michael Carroll has a good discussion of this in his blog post on a relatively recent court case:  see https://carrollogos.blogspot.com/2016/04/us-court-correctly-interprets-creative.html.  In this case, a commercial publisher used a SA photograph on the cover of its street atlas.  It slightly cropped the image, but the court concluded that the change was not enough to create an adaptation and hence the publisher was not required to distribute its atlas with an SA license on it.  The publisher did comply with the attribution requirements of the license.

In your hypothetical, if you decided to abridge the chapter, then you would be created a derivative version and would have to apply the SA license to the book.  But so long as you follow the other terms in the CC license, you can put any license you like on the book as a whole (even if the cover image is the only thing actually being licensed by you).  You could even omit a license on your contribution.  Just don’t distribute it commercially.

“But it has to do two more things:

1.     Add separate license statements for each chapter.”

Yes, I am postulating that you are complying with the attribution and non-commercial elements of the license, which are not dependent on whether or not the works are adapted.

2. The chapters must be separable (the staples can be easily removed)

No, the physical format does not matter.  Copyright matters are separate from physical formats.  All you need to do is include the original license and attribution with each chapter.

Peter Hirtle

From: [hidden email] [mailto:[hidden email]] On Behalf Of Eric Hellman
Sent: Friday, September 29, 2017 5:24 PM
To: [hidden email]
Subject: Re: [SCHOLCOMM] By-SA and By-NC-SA

The comments fro Billy Meinke and Peter Hirtle reflect my reality that there seem to be only gray areas when it comes to copyright.

The 3.0 license defines "collections" and "adaptions".

  1.  "Collection" means a collection of literary or artistic works, such as encyclopedias and anthologies, or performances, phonograms or broadcasts, or other works or subject matter other than works listed in Section 1(g) below, which, by reason of the selection and arrangement of their contents, constitute intellectual creations, in which the Work is included in its entirety in unmodified form along with one or more other contributions, each constituting separate and independent works in themselves, which together are assembled into a collective whole. A work that constitutes a Collection will not be considered an Adaptation (as defined above) for the purposes of this License.
and in doing so makes explicit how to deal with the SA vs SA-NC.

So imagine you are making a book from two chapters, one SA and the other SA-NC. The book (a work in its own right because of a creative cover), has to be distriibuted under the  more restrictive license (SA-NC) because it staples together the two chapters. But it has to do two more things:
1. Add separate license statements for each chapter.
2. The chapters must be separable (the staples can be easily removed)

I would make the same argument for illustrations in a website or ebook. If Mahrya Carncross's colleague's guide is more of a collection than mix, then she might be in the clear.

https://creativecommons.org/licenses/by-nc-sa/3.0/legalcode

The 4.0 license doesn't have this explicit carve-out for collections, and appears to me to take a harder line against mixed license "arrangement" works, but at the same time says that 3.0 licensed works can be adapted into 4.0 licenses, so that's confusing to this non-lawyer.

https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode

Eric Hellman
President, Free Ebook Foundation
Founder, Unglue.it<http://unglue.it> https://unglue.it/
https://go-to-hellman.blogspot.com/
twitter: @gluejar

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Commons-l mailing list
[hidden email]
https://lists.wikimedia.org/mailman/listinfo/commons-l

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[hidden email]
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