Does adding creative captions to an unaltered image create a derivative work?
November 8, 2010 9:55 AM   Subscribe

Creative commons no derivatives license: what's a derivative work?

There are some pictures I'd like to use on a website. I want to put captions to the pictures that play in creative ways on the image. The images are Creative Commons No Derivatives. The captions will be simple text above and/or below the image, which will be reproduced in its entirety without modification.

In my mind, the captions and the images are two separate things -- the unaltered CC work, and then commentary on the work. It feels like a pretty big stretch for me to view the combined picture + caption as a new, derivative thing.

I wanted to get a second opinion, though, in case I'm too invested in this great idea I have to be objective.

Anonymous because I want the site to be soopersekret until it's done.
posted by anonymous to Law & Government (6 answers total)
I can't speak to the actual legal ramifications, but if you did that to something of mine I wouldn't have a problem with it.
posted by theichibun at 9:58 AM on November 8, 2010

Are the captions IN the picture? That is, you are adding text into the picture using an app like Photoshop, then saving the result as a new image. Or will the captions be be plain text running beneath the picture?

The former example would be a derivative, because you are altering the original in some way and saving that result as a new image. At least that's how I would understand it.
posted by Thorzdad at 10:01 AM on November 8, 2010

It feels like a pretty big stretch for me to view the combined picture + caption as a new, derivative thing.

That is, unfortunately, how the law would probably view it. There aren't two separate things if you're putting them together. Commentary is only separate if you're displaying the original work more or less unaltered.

Then again, derivate works can fall under fair use even if a license--CC or otherwise--would try to exclude it. Copyright holders cannot restrict fair use through licensing.

So really, this could go either way. But offering a legal opinion about whether or not your particular use constitutes fair use isn't something I'm prepared to do, because while IAAL, IANYL.
posted by valkyryn at 10:27 AM on November 8, 2010

Mod note: From the OP:
The images will not be modfiied at all. The captions will be in the page's HTML, separate from the image.
posted by jessamyn (staff) at 10:40 AM on November 8, 2010

What, just displaying text outside of an unaltered image? You're fine.
posted by rhizome at 12:48 PM on November 8, 2010

I think I'm with rhizome.
Caption inserted into the image a-la CanHasCheezburger / LOLcats = derivative work.
Unaltered image with a separate caption = no change to the image = not a derivative work.
However, make sure that the CC license doesn't have any other conditions -- such as NonCommercial or Attribution -- that your usage might run afoul of.
posted by D.Billy at 8:52 PM on November 8, 2010

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