Difference between revisions of "Drauglis v. Kappa Map Group, LLC"

Description

D.C. District Court

Case summary

BACKGROUND

Art Drauglis, photographer, had posted his works on Flickr, including "Swain's Lock", posted on April 27, 2008 under a BY-SA 2.0 license.

Kappa Map published (2012) an atlas using one of Drauglis' photographs for the cover.

Drauglis sued (Case 1:14-cv-01043-ABJ filed June 19, 2014), claiming

(1) that the CC license was violated, and thus the atlas use infringed copyright, and

(2) a 17 USC 1202 "copyright management information" claim, which did not rely on the CC license.

Drauglis argued the CC license was violated in several ways.

(1) The use of his photograph as a cover of an atlas constituted a "derivative work" which therefore would have had to have been shared under a CC-BY-SA license to be compliant. (CC license Section 4(b))

(2) Inadequate information about the CC license in the text of the atlas. (CC license Section 4(a))

(3) Attribution term was not met because attribution was not appropriate. (CC license Section 4(c)

RESULT

The court found against Drauglis on both counts.

COLLECTIVE WORK, NOT DERIVATIVE WORK

The use of the photograph on the cover did not constitute a "derivative work". Because the atlas was published "in its entirety in unmodified form" it was a "collective work" rather than a "derivative work", which is "a work based upon the Work" such as a "translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted...."

Drauglis also alleged that the photograph had been cropped for the cover, constituting a derivative work. However, this allegation appeared only on reply (not in complaint or summary judgment motion) and Drauglis provided no evidentiary support. Moreover, any cropping appeared to be so minor and insignificant that it would not constitute a derivative work.

"CC BY-SA 2.0" SUFFICIENT FOR URI REQUIREMENT

Drauglis had argued that Section 4(a) of the CC license required a link to the License or the text of the License. The Court deemed that a URI (Uniform Resource Identifier), the term used in the CC license, did not require inclusion of a URL link; either a URL or the Uniform Resource NAME (URN) was sufficient to meet the terms of the license. Kappa had included "CC BY-SA 2.0", and that was the proper URN, thus satisfying Section 4(a) of the CC license.

ATTRIBUTION AND SUFFICIENT CREDIT Drauglis had argued that credit on the back cover, when his image was published on the front cover, was insufficient to meet the attribution requirement. Other copyright information was included on the inside front cover, and a separate copyright statement was included on the bottom of each page with a map. The court held that the cover image was more akin to a map than to the book as a whole, so compared the credit given to Drauglis' photo (back cover, small 7-8 point type) to the credits given to the maps (bottom of each page, type size unidentified in the opinion) rather than to the credit given to the book as a whole (first page, "at least" 10 point type).

TAKE AWAY(S)

Decision: The decision was an interpretation of the Creative Commons license, a case of first impression in the D.C. Circuit.

Court cited to Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008).

Use of a whole work is suggestive of a "compilation" rather than a derivative work subject to the ND/SA terms.

Minor cropping does not constitute a derivative work subject to the ND/SA terms.

Conventional crediting of a cover photograph separate from crediting for the work as a whole is not considered "confusing" in the context of CMI (1202 copyright management information).