Are Creative Commons licenses enforceable in court? Yes.
In an important decision titled Drauglis v. Kappa Map Group, LLC, 128 F. Supp.3d 46 (D.D.C. 2015), Judge Amy Berman Jackson of the United States District Court for the District of Columbia has issued a decision that:
- confirms the enforceability of Creative Commons licenses under U.S. copyright law;
- interprets the attribution requirement in the licenses to have the flexibility that is consistent with the licenses’ language and intent;
- holds that incorporating a photo into the cover of a road atlas creates a collective work rather than derivative work under U.S. copyright law; and
- holds that the “ShareAlike” condition in the 2.0 version of CC licenses is only triggered when a user distributes a derivative work as that concept is understood under U.S. law.
The court also rejected some misdirected arguments about copyright management information under Section 1202 of the Copyright Act.
Origins of the dispute
In April 2008, Art Drauglis took this photo of Swain’s Lock along the Cheasapeake & Ohio canal in Montgomery County, Maryland. He posted it to his shared photostream on Flickr under the Creative Commons Attribution-ShareAlike 2.0 Generic License.
“Swain’s Lock, Montgomery Co., MD.” Photograph by Art Drauglis. Licensed under the Creative Commons Attribution-ShareAlike 2.0 Generic License.
Kappa Map Group publishes road atlases under the brand “ADC”. Beginning in 2012, Kappa relied on the Creative Commons license to publish an atlas that incorporates Drauglis’ photo on its cover.
Subsequently, Drauglis registered his claim to copyright in the photo in 2014 (which is required to file a lawsuit for copyright infringement) and sued Kappa. Although he acknowledged that he had granted Kappa and the rest of the public the right to use his photo commercially, Drauglis asserted that Kappa was operating outside the license and therefore was an infringer because (1) Kappa had failed to give him credit appropriately, (2) failed to properly identify the CC license under which his photograph was offered, and (3) that Kappa had created a derivative work that required the entire atlas to be licensed under the same CC license.
Drauglis acknowledged that Kappa had given him credit in the atlas. The back cover identifies the title of the photograph, the authors of the shared photostream, and the name of the CC license under which the photo is offered to the public.
Drauglis complained that Kappa had not given him credit in the front inside page of the atlas where the copyright notice is published, that the credit he received is not as prominent as that given in the copyright notice, and that the attribution fails to provide the URL for the CC license.
The court rejected the comparative prominence claim as follows:
Drauglis, 128 F. Supp. 3d at 59.But the Court finds that the copyright notice on the first page is not the relevant authorship credit to which the attribution on the back cover should be compared. Instead, the notation at the bottom of each individual map – “© Kappa Map Group, LLC” – is the comparable authorship credit, because the single Photograph is more similar to an individual map than it is to the Atlas as a whole.. . . .Therefore, because defendant provided plaintiff with authorship credit in a manner comparable to and as prominent as the attributions on each of the individual maps when it attributed the Photograph to plaintiff on the back cover, the Court finds that defendant did not violate section 4(c).
Identifying the CC License
With respect to the claim that Kappa was required to provide a link to the CC license with the attribution, the court carefully interpreted the plain language of the license, which reads that the user “must include a copy of, or the Uniform Resource Identifier for, this License with every copy . . . of the Work”.
The court analyzed and rejected this claim because the license does not require a link to the license text if the name of the license is used:
While there is no legal authority on this point, Internet authorities have defined a Uniform Resource Identifier (“URI”) as “an identifier consisting of a sequence of characters . . . . [which] enables uniform identification of resources via a separately defined extensible set of naming schemes.” T. Berners-Lee,7 et al., Uniform Resource Identifier: Generic Syntax 5 (Jan. 2005), Network Working Grp., https://tools.ietf.org/html/std66 (last visited Aug. 18, 2015). There is more than one form of URI – it can be “a locator, a name, or both.” Id. at 7.. . . .Thus, when plaintiff argues that defendant should have provided “a link to the full license” in the Atlas, he conflates the term Uniform Resource Identifier, which is used in section 4(a), with the narrower term Uniform Resource Locator, which appears nowhere in the License. A Uniform Resource Locator – “URL” or “link” – is one form of a Uniform Resource Identifier, but it is not the only one. For that reason, plaintiff’s contention that defendant was required to include in the Atlas a “link” to the License – its Uniform Resource Locator – is simply incorrect. Section 4(a) states only that a licensee “must include . . . the Uniform Resource Identifier” for the License when distributing a work offered under the License. See License § 4(a) (emphasis added).To satisfy section 4(a), then, defendant could have printed the Atlas with either the License’s URL or its URN, as both are subclasses of the URI required by the License. And while defendant did not print the Atlas with a link to the License’s web address (its URL), it did provide the License’s URN when included the notation “Creative Commoms [sic], CC-BY-SA 2.0” on the back cover of the Atlas. Atlas at 116. Creative Commons has unique names for each of its six licenses, and the particular type of license at issue in this case is specifically designated and easily located online by the phrase “CC BY-SA 2.0.” See About the Licenses, Creative Commons, http://creativecommons.org/licenses/ (last visited Aug. 18, 2015) (abbreviating the “Attribution-ShareAlike” license as “CC BY-SA”); Attribution-ShareAlike 2.0 Generic, Creative Commons, https://creativecommons.org/licenses/by-sa/2.0/ (last visited Aug. 18, 2015) (referring to the License as the “Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0)” license). That “CC BY-SA 2.0” is the proper URN for the License is further confirmed by a routine Internet search.Therefore, the Court finds that defendant’s reference to the name of the License on the back cover of the Atlas was sufficient to satisfy the section 4(a) notice requirement, and defendant is entitled to summary judgment on this issue.
Id. at 56-58.
The court recognized that under the terms of the 2.0 license – which mirrors the language of the U.S. Copyright Act – use of the licensed work as part of a new work that is original enough to get its own copyright will result either in a “collective work” or in a “derivative work.” The distinction matters because under the license, the ShareAlike requirement applies only to derivative works.
Under both the 2.0 license and the U.S. Copyright Act, a derivative work arises only when it is based upon the original and is embodied in a form in which it has been “recast, transformed, or adapted.”
Applied to the atlas, the court held:
But the Atlas is a map book and not an adaptation of plaintiff’s photograph. Because this 112-page book of maps is not in any way “based upon” the Photograph, and because defendant did not “recast, transform, or adapt” the Photograph when it used it as the cover art for the Atlas, see License § 1(b), the Court finds that neither the Atlas nor its cover constitutes a derivative work subject to the ShareAlike requirement. Rather, the Atlas is more akin to a collective work, because the Photograph was placed “in its entirety in unmodified form” alongside “other contributions, constituting separate and independent works” – that is, the maps. See id. § 1(a).
Id. at 55.
This is always how we at Creative Commons have understood the difference between collective works and derivative works. Unfortunately, Drauglis’s attorney submitted to the court a sworn statement from a former Creative Commons employee that took the position that Kappa’s use of the photograph turned the entire atlas into a derivative work, or, in the alternative, that the cover of the atlas was a derivative work.
This person admitted that she was not speaking on behalf of Creative Commons, but there is no doubt that this is the implication based on her statement of expertise. The judge correctly ignored this legal opinion because she found no ambiguity in the language of the license and therefore she did not need outside evidence to aid her interpretation of the license. The judge also found that plaintiff had failed to raise the claim about the atlas cover as a derivative work, but even if the issue had been properly raised, she would have rejected it for the same reasons.