Weekly Image Photo Contest - CC License Interpretation

Question

In the question for the weekly image contest, it says said [n.b. the interpretive statement has been removed; see below].

The submitted image must conform to this site's content license, cc-wiki with attribution required. This will only apply to the low-resolution version provided on the site directly, not to the same photograph in other formats or to linked images, but if you're not comfortable with that, this isn't the contest for you.

I don't see how this can be possible. Although I can't make a solid case with reference to the wording of the license alone, consider the following sections from the creative commons website. The second section is linked to from the first section, so the logical flow goes directly from the first part to the second. Emphasis is mine.

Firstly:

Can I apply a CC license to low-resolution copies of a licensed work and reserve more rights in high-resolution copies?

You may license your copyright or distribute your work under more than one set of terms. For example, you may publish a photograph on your website, but only distribute high-resolution copies to people who have paid for access. This is a practice CC supports. However, if the low-resolution and high-resolution copies are the same work under applicable copyright law [see next section], permission under a CC license is not limited to a particular copy, and someone who receives a copy in high resolution may use it under the terms of the CC license applied to the low-resolution copy.

Note that, although CC strongly discourages the practice, CC cannot prevent licensors from attempting to impose restrictions through separate agreements on uses the license otherwise would allow. In that case, licensees may be contractually restricted from using the high-resolution copy, for example, even if the licensor has placed a CC license on the low-resolution copy.

And also:

How do I know if a low-resolution photo and a high-resolution photo are the same work?

As with most copyright questions, it will depend on applicable law. Generally, to be different works under copyright law, there must be expressive or original choices made that make one work a separate and distinct work from another. The determination depends on the standards for copyright in the relevant jurisdiction.

Under U.S. copyright law, for example, mechanical reproduction of a work into a different format is unlikely to create a separate, new work. Consequently, digitally enhancing or changing the format of a work absent some originality, such as expressive choices made in the enhancement or encoding, will not likely create a separate work for copyright purposes. The creative bar is low, but it is not non-existent. Accordingly, in some jurisdictions releasing a photograph under a CC license will give the public permission to reuse the photograph in a different resolution.

From these two excerpts, I would surmise that any high resolution copies must also be licensed under the terms of the cc license as the uploaded low resolution copies, since there are no "separate agreements" imposed and since I don't think any court in any jurisdiction in the world would consider downsizing an image to constitute "expressive or original choices made that make one work a separate and distinct work from another". The only choices made would be interpolation algorithm (most people probably just used the default for whatever program they were using), output size (though this is dictated by the competition guidelines) and jpeg quality. So basically no creativity whatsoever.

Answer 1

I'm not a lawyer, and I don't think you'll get a legal answer here. However, I think it's safe to say that entering a photo in this contest can be considered a declaration by the uploader that this is a separate work.

It is often — and perhaps even always — the case that contest entries are not merely mechanical resizes. Since the format is constrained in very specific way, the photographer must make a creative choice about how to actually crop, both to fit the aspect ratio constraints and to communicate effectively in the small size. Then, the creator often makes further choices about the right amount of sharpening and even color curve adjustments as subjectively appropriate for the format. All of this can actually be quite of a challenge in itself, and takes special skill. These are certainly "expressive choices"; reread the CC FAQ with that in mind.

Would this be considered a separate work in every jurisdiction? There are not hard-and-fast rules. So, from this, it would probably be down to a court case to determine the specifics. Therefore:

• As someone who might enter the contest, you will need to decide if you can accept the risk of someone attempting to argue that a high-resolution version is the same work, rather than a separate work from which the contest entry is derived, despite the above.
• As someone who wants to disregard the photographer's wishes and use a higher-resolution version of a contrast entry without separate permission, you have to decide if that risk is worth it.

In either case, if you're really concerned, check with your lawyer. Or, if your goal is simply to use a higher-resolution image related to a contest entry under Creative Commons terms, you may find that the photographer is willing to (or in some cases already has) grant them.

Answer 2

Ok, rewriting my answer as it pertains to CC terminology specifically. Same caveat as before, I am not a lawyer, so take it with a grain of salt.

CC licenses do, by default, if applied to a work, grant rights to that work, rather than the copy, so two things come in to play. First, is the copy or the work the thing being licensed. The terminology of the license seems to leave it open via "other material" as possible licensed content, but a copy itself may not be able to have a license applied to it depending on your jurisdiction.

Assuming a license can be applied to a copy, rather than the work, then you could apply the CC license to the copy and any other copies would be unaffected. If the license is not enforceable on a copy of a work, then you would instead need it to be defined as a separate work, which in many jurisdictions does require some amount of artistic choice, but this can also easily be worked around via decisions such as cropping or sharpening which impact the work.

The exact legal bars for each would be a more ambiguous legal question that you should really see a lawyer for.