Understanding Copyright And Licenses

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The Web is full of creative and practical resources that we can use to improve our projects. Photography, fonts, music and code are perfect examples. Finding stock objects and existing implementations is often quicker, cheaper and more practical than producing your own.

Whether free or not, these resources normally come with a license to ensure fair use. For professionals, understanding the limitations of a license is critical; with this knowledge, you’d be surprised by what’s available. Understanding copyright and licenses allows us to do what we do best: be creative.

Understanding Copyright and Licenses

In this article, we’ll cover the basic principles that govern copyright and licenses. We’ll then explore common licenses in our industry, with examples. We’ll cover the following:

Quick disclaimer: I am not a lawyer! This is not legal advice, only the results of my own research. Please always read the entire license of any resource you use.

Copyright And Licensing

When we create something — let’s say a photograph — we own the copyright, which is our exclusive right as the author to own that work. We control who else can use our work and in what manner. For example, I could allow someone to print my photograph or adapt it in a piece of art. Rather than establishing verbal agreements, I can distribute my work with a license that sets the guidelines for use. The things that are copyrighted are sometimes referred to as “intellectual property.”

Licenses are granted by an authority to allow a usage; in my case, the use and distribution of resources by the copyright owner (i.e. me). I may decide to offer my photograph for free or charge a price; either way, I can include a license to limit usage, and I maintain the copyright. Just because someone pays money doesn’t mean they have full control or rights to what they’re buying. Licenses can dictate the number or uses, the bounds of use and even the length of time until the license expires.

Moreover, under “work for hire,” the employer holds the copyright, not the author or creative; in many cases, this is a company (such as a creative agency) or its client (by contractual agreement). In such cases, the creator retains “moral rights” to their work, including the right of attribution. This is partly why published articles refer to the author, although moral rights can include anonymity.

Copyright laws are incredibly complex, but this should be a good start.

What Is “Fair Use”

“Fair use” is an exception to the exclusive rights held by the copyright owner. It exists in some countries such as the US and UK. Under it, in certain cases, using work without permission is possible. If someone’s usage is defined as fair use, then they don’t need to obtain a license. Essentially, using copyrighted material is a legal right. Examples of fair use might include:

  • Educational purposes, such as teaching and student research;
  • Making commentary and criticism as part of a news report or published article.

There’s a misconception that noncommercial or nonprofit use is always acceptable. It isn’t. Fair use is a legal term and is judged case by case. Always research thoroughly if you think your use of copyrighted material is legal.

What Is “Public Domain”

Work that falls in the “public domain” basically has no copyright owner. You can use, modify and redistribute it to your heart’s content. An author can forfeit their copyright and, thus, put their work in the public domain (although it’s not quite that easy, as we’ll see later). Copyright ownership expires11 after the author’s death (generally 50 to 70 years after death in most countries).

Every country has its own interpretation of copyright law, but there are many agreements between nations. Licenses are enforced under copyright law, which is different than contract law. The distinction here is questionable within certain jurisdictions, each of which applies the law differently.

The Berne Convention12 (for the Protection of Literary and Artistic Works) was established in 1886 and is an international agreement that governs copyright. It states that each member state must recognize the copyright of work from other countries, and it must extend the same rights to foreign work that it gives to those of its own citizens. It also makes clear a minium standard of protection for copyright owners. To date, 164 countries have signed this agreement.

Licenses can be limited to certain jurisdictions. So, while something may be free in one country, the copyright owner could reserve all rights in other countries.

If you’re reading this, I can guess pretty confidently that you work on the Web and that you are, or will be, purchasing licenses from copyright owners in different countries. These licenses are bound by the laws of those countries, and you must respect them.

We’re getting into political and legal territory here. Remember: if in doubt, get legal advice.

License Terminology

A license can be written from scratch, but most people choose a well-known one. We’ll cover the common licenses that relate to our industry of website design and development, specifically those that allow for free usage — “free,” meaning that no money is required. Generally, licenses that govern paid resources are written individually, but all licenses have commonalities.

There is obviously a fundamental difference between, say, development code and stock photography. So, it should come as no surprise that a range of licenses exist. Each is tailored to the usage. Before we dive into them, let’s go over some common terminology:

  • Copy
    A simple copy of the original work.
  • Modify
    To alter copyrighted work in some way before using it.
  • Derivative work
    The result of modifying copyrighted work to produce new work.
  • Distribute
    The act of giving someone your work under a license.
  • Redistribute
    The act of distributing work and its license after obtaining it under license from the original copyright owner.
  • Share alike
    Permission to distribute derivative work under the same or a similar license.
  • Credit” or “attribution
    The act of identifying the original copyright owner.
  • Copyright notice
    A written phrase or symbol (©) informing of copyright ownership (not necessarily required by law).
  • All rights reserved
    A common copyright notice declaring that no usage rights exist (again, not necessarily required).
  • Warranty
    A written guarantee included with the license (or, usually, not).

With this in mind, let’s start with the creative licenses.

Creative Commons

Lawrence Lessig founded Creative Commons13 (CC) in 2001 to create a series of easy-to-understand copyright licenses for online creative work. These licenses established the notion of “some rights reserved.”

The Creative Commons license has six variations. It’s really a collection of licenses that cover particular uses. These include whether the licensed work can be used commercially, whether it can be modified, and whether derivative work can be redistributed under the same (or a compatible) license. A Creative Commons license can be restricted to certain jurisdictions or apply internationally.

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The basic Creative Commons license is CC Attribution. It allows for all copying, modification and redistribution (even commercially), provided that the original author is attributed (with no implication of endorsement). Work under CC Attribution is essentially free to use.

The CC Attribution license can be extended to CC Attribution-ShareAlike. The same rules apply, except that all derivative work must be licensed the same way. This distinction ensures that all resulting work remains free. Wikipedia uses this license for its text.

Here are the four other Creative Commons licenses:

  • CC Attribution-NoDerivs
    Redistribution is allowed, provided that attribution is given and no modifications are made.
  • CC Attribution-NonCommercial
    Everything is allowed with attribution, provided that it is not done commercially.
  • CC Attribution-NonCommercial-ShareAlike
    The same as above, but derivative work must be under the same license.
  • CC Attribution-NonCommercial-NoDerivs
    Redistribution is allowed for noncommercial use and without any modification.

As you can see, the Creative Commons licence has six separate versions, all of which at least require attribution to the copyright owner.

You should attribute by citing the title of the work, the copyright notice, the author’s name and the license name. For example:

This work includes the photo “Photo’s Title,” available under a Creative Commons Attribution license, © Author’s Name.

If the original work includes a copyright notice, it must be left intact. Otherwise, you are free to attribute appropriately. Also, link to the work and license if possible. Informing the author is courteous but not required.

CC015 also exists. It enables copyright owners to waive all of their rights. It’s essentially a way of saying that the work is in the public domain and that there are “no rights reserved.” The concept exists because many jurisdictions don’t have a clear process for putting work in the public domain, and many legal systems actually prohibit the surrendering of lawful rights such as copyright ownership.

The Creative Commons licenses are clear and readable. As mentioned, Wikipedia uses the Attribution-ShareAlike. Flickr16 makes it easy for users to select one of the CC licenses, and it’s a great source of photography for your projects. You can even search Google for Creative Commons content17.

Software Licenses

Written code is copyrighted: you own what you write. Of course, the simplest line of code, like print('Hello World!');, can be rewritten totally independently, without knowledge of the original author, and both parties will own the copyright of their own version (however worthless it may be). But beyond a few lines, code does become valuable, and distributing it with a license is important.

Other intellectual property laws, such as patents, can also protect software. Software patent laws are hotly debated in the US, where they are granted. In many other countries, such as the UK and New Zealand, software cannot be patented. While copyright is a right, patents must be granted.

Software licenses cover the use of programming code. If you’re using a third-party library or elements from an open-source project, your usage must respect the relevant license.

Development licenses generally cover the following points:

  • How the work and modifications of it can be distributed,
  • Whether any derivative work must be made open source,
  • What copyright and other notices are required for redistribution.

Software licenses can be defined as “permissive” or “copyleft.” The latter removes the right to add further license restrictions upon redistribution.

Below is a quick rundown of common software licenses and how they’ve evolved over the decades.

MIT License

The MIT license18 is perhaps the most open of all. It effectively puts the work in the public domain. It explicitly gives permission, “without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sub license, and/or sell copies of the Software.” The only condition is that the full copyright notice (which declares no warranty or liability) be included. Work released under the MIT license can be used for anything, including commercial and proprietary software.

BSD License

The BSD license19 is similar to the MIT license.

The original version, published in 1990, had four clauses, the last being an “advertising clause” stating that all promotional material for derivative work had to refer to the original source. This was later removed in 1999 in the “New BSD” or “Modified BSD” license.

What separates the newer three-clause BSD license from the MIT license is a clause stating that the name of the original copyright owner cannot be used to endorse any derivative work without prior permission. This eliminates any doubt about the right to use the person or organization’s name. Whether this clause is even required is debatable, because copyright and trademark laws are separate issues. Even though the MIT license does not declare this, we cannot assume permission of endorsement.

An additional two-clause “FreeBSD” or “Simplified BSD” license exists, which omits this endorsement clause and instead includes a disclaimer to disassociate any views made in derivative work from the original copyright owner. This can be seen as explicitly stating the opposite of an endorsement.

Both the MIT and BSD licenses give us complete freedom to copy, distribute and modify work for any purpose, provided that the original license and copyright notice are included. Derivative work can be released under another license or as proprietary software.

The Apache License

You can see from the BSD example just how difficult it is to word a license. There are so many ambiguities and connections to other laws that getting the point across is nearly impossible. Many more essentially “free” licenses have appeared in an attempt to make such intention clear.

The Apache License20 is a free software license that does not require the same license of derivative work. This means that code under the license can be used in open, free and proprietary software (like the MIT and BSD licenses).

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It imposes the conditions that in any licensed file, all original copyright, attribution and trademark notices must be preserved. Additionally, with any modified work, a notice of change must be included. Any existing notices of change must also be kept. All of these notices must be distributed in a text file and in the source code or documentation.

This requirement to preserve modification notices makes the Apache license different from the MIT and BSD licenses. It also includes many more legal terms and conditions that (among other purposes) dissolves any liability of the original copyright owner.

The Apache license (version 2) is said to be GPL-compatible, meaning that a project containing code licensed under both must also be licensed under GPL version 3.

GNU General Public License

First written by Richard Stallman in 1989, the General Public License22 (GPL) is now at version 3 as of 2007. It was founded on the principle that we should be free to use, change, share and share changes to free software. No matter how the software is distributed, it remains free. This concept is called “copyleft.”

The basic principles of the GPL mean that, unlike the MIT, BSD and Apache licenses, work under GPL must remain under this license. GPL code can be sold, but no proprietary software can be derived from it. If you distribute any derivative work, then your source code must be made available under the same license. Essentially, once a work is released under the GPL, it remains GPL and no further restrictions can be applied.

Version 3 of the GPL specifically states that while code under the GPL can be used to implement digital rights management (DRM), using GPL code does not count as effective “protection,” and as such, anyone who breaks it cannot be help accountable under digital rights law.

Where Licenses Are Used

We already know that Wikipedia uses the Creative Commons Attribute-ShareAlike license and that Flickr allows users to choose a Creative Commons license. What else should we know?

Most JavaScript libraries are available under license by nature. jQuery23, for example, is available under dual license: either MIT or GPL v2. Other libraries are available under MIT, such as Modernizr24 (which is also under BSD), Raphaël25 and Respond.js26 (also under GPL v2). You can use all of these libraries while reserving rights for your own derivative work, provided that you include the relevant copyright notices for these libraries.

Plug-Ins and Themes

WordPress and Drupal are important ones to note because they’re available only under GPL v2. This means that any derivative work must also be licensed under GPL; and according to the WordPress license page27, this includes all plug-ins and themes:

Part of this license outlines requirements for derivative works, such as plugins or themes. Derivatives of WordPress code inherit the GPL license. […] There is some legal grey area regarding what is considered a derivative work, but we feel strongly that plugins and themes are derivative work and thus inherit the GPL license. If you disagree, you might want to consider a non-GPL platform…

Drupal’s licensing FAQ28 is more specific about this:

The GPL requires that if you make a derivative work of Drupal and distribute it to someone else, you must provide that person with the source code under the terms of the GPL so that they may modify and redistribute it under the terms of the GPL as well. However, you are under no obligation to distribute the code to anyone else. If you do not distribute the code but use it only within your organization, then you are not required to distribute it to anyone at all.

What does this mean? If you’re developing a WordPress or Drupal theme, it must be under GPL. You can distribute your work, should you choose.

If you’re developing a theme for personal use or for a client, you have little to worry about because you are not technically “distributing” it.

Selling themes on the open market is a gray area, because distribution must be under the GPL. The GPL allows you to sell this work, but it also allows others to redistribute and sell it, too; you can’t do much about that. However, theoretically, the only derivative work that falls under GPL is the PHP code; any images, CSS and other content in your project remain yours. On top of that, you are free to charge extra for technical support and so on.

Remember that while WordPress is open source and free under the GPL, it is still copyrighted. You have to respect its chosen license.

Does My Work Need A License?

If you’re publishing content online — be it design work, photography, blog articles, audio or video — then the default is “all rights reserved”. Unless you publish it under a license (or through a Web service that reserves some rights for itself — and most do), then only you hold copyright. That’s great, but what do you gain by giving others permission?

In his article “Pick a License, Any License3629,” Jeff Atwood highlights the interesting example of developers who publish code on their blogs. Unless the developer states otherwise, no one has permission to use that code in their project. Always consider the benefits of others using and attributing your work: it could be great self-promotion!

It’s worth noting that you do not need to issue a license in order to give permission for someone to use your work. Some areas of the law favor verbal and contractual agreements over copyright.

Additionally, when using services such as Twitter and Flickr, you are probably giving those websites full rights to your work as part of their terms of service. These websites couldn’t operate without your content, but they do take every advantage of reserving full rights over the content you publish. This allows them to develop their service in different ways on the strength of your content.

Take this excerpt from Yahoo’s terms of service30, which Flickr uses:

[…] you grant Yahoo! the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed […]

That covers just about everything!

While Flickr allows you to upload photos under a Creative Commons license for others to use, you also grant Yahoo permission to do anything it likes with them. I’m not condemning Yahoo for this practice because it’s common to all Web services. I’m just highlight the importance of reading the terms and conditions and understanding where you publish work and what rights you’re giving away.

Final Thoughts

With this information, you should have a strong understanding of how copyright and licenses work, why they exist and what they achieve. Ignorance of copyright — as of any law — is no excuse. By understanding it, we can take advantage of the wealth of creative content across the Web. If you’re publishing work online, consider sharing it under a license. You never know what interesting things people will do with it.

As mentioned, this article is the result of my own research and is not legal advice. You’ll need the latter if you’re unsure about copyright licenses.

Further Reading

(al)

Footnotes

  1. 1 #what-is-a-license
  2. 2 #what-is-fair-use
  3. 3 #what-is-public-domain
  4. 4 #legal-jurisdiction
  5. 5 #license-terminology
  6. 6 #creative-commons
  7. 7 #software-licenses
  8. 8 #where-licenses-are-used
  9. 9 #do-i-need-a-license
  10. 10 #final-thoughts
  11. 11 http://en.wikipedia.org/wiki/List_of_countries%27_copyright_length
  12. 12 http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works
  13. 13 http://www.creativecommons.org
  14. 14 http://www.flickr.com/photos/jorgeandresem/711148097/
  15. 15 http://creativecommons.org/choose/zero/
  16. 16 http://www.flickr.com/creativecommons/
  17. 17 http://www.google.com/support/websearch/bin/answer.py?&answer=29508&hl=
  18. 18 http://www.opensource.org/licenses/mit-license.php
  19. 19 http://www.opensource.org/licenses/BSD-3-Clause
  20. 20 http://www.apache.org/licenses/LICENSE-2.0.html
  21. 21 http://en.wikipedia.org/wiki/Apache_License
  22. 22 http://www.gnu.org/licenses/gpl.html
  23. 23 http://jquery.org/license/
  24. 24 http://www.modernizr.com/license/
  25. 25 http://raphaeljs.com/
  26. 26 https://github.com/scottjehl/Respond
  27. 27 http://wordpress.org/about/license/
  28. 28 http://drupal.org/licensing/faq/
  29. 29 http://www.codinghorror.com/blog/2007/04/pick-a-license-any-license.html
  30. 30 http://info.yahoo.com/legal/uk/yahoo/utos-173.html
  31. 31 http://www.smashingmagazine.com/2010/03/24/a-short-guide-to-open-source-and-similar-licenses/
  32. 32 http://www.opensource.org/licenses/alphabetical
  33. 33 http://creativecommons.org/licenses/
  34. 34 http://www.gnu.org/copyleft/
  35. 35 http://producingoss.com/en/
  36. 36 http://www.codinghorror.com/blog/2007/04/pick-a-license-any-license.html
  37. 37 http://themeshaper.com/2008/09/08/the-ethics-of-premium-wordpress-themes/

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David Bushell is a website designer and front-end developer working at Browser Creative, London. He blogs regularly at dbushell.com and xheight, and shares inspiration and web design related interests at Design Heroes. You can also follow him on Twitter.

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  1. 1

    Michael Carroll

    March 14, 2012 5:53 am

    Thanks for the informative article on Creative Commons Copyright. I have a question if I may: Does an image with a CC license that includes a share alike clause mean that if I were to use the image as a CD cover, for instance, I would have to offer the CD for free or just that I cannot prevent or charge for any other use of that image, be it another band’s CD, etc? Thanks in advance for any thoughts.

    0
  2. 52

    Great article! Very useful. Thanks.

    0
  3. 103

    I have a question, This is just for my own. I’m not gonna sell it or anything, but Is it illegal if I get a photo on google then print it on my shirt?

    -1
  4. 154

    Typo: “…and as such, anyone who breaks it cannot be [[help]] accountable under digital rights law.” under GPL paragraph 3

    Should be “held”.

    I’m just a grammar nazi :P

    -1
  5. 205

    So my question is can you legally remove the citation text from a GPLv3 licenced WordPress theme?

    I haven’t been able to find anything on GPL citing. When I want that I always use CC-something.

    -1
  6. 256

    Quick question. A local magazine used a copy of my wedding invitation and a save the date card in a recent article without my permission and with no credit to the individual that I paid to make either of them.

    I am not happy about this. Do I have any legal recourse?

    -1
  7. 307

    Ok, so I designed the theme , custom PHP coding, custom CSS and graphic design.

    As I understand PHP code for the WordPress theme is GPL and my images and CSS can be copyrighted as commercial.

    Where do I get that license? (PHP=GPL + CSS/Images=commercial)

    I mean where is the actual text verbiage that I should include in theme. I’m looking for it and can’t find anywhere.

    -1
  8. 358

    In 2004 we formed an organization and named it. Before choosing a name and incorporating, we searched the Internet, made searches on the state comptroller’s site and made reasonably sure that no one was using the name that we chose. We incorporated as a 501c3 and the date of incorporating and of filing and getting things squared with the irs is 2005. I put up a website with our name on it and secured the website’s name was the same as our domain name. Recently, someone contacted me about selling our domain name. I thought about selling so we negotiated a bit and then, after a few exchanged emails, the person contacted me and told me that there was another organization that was called the same thing we are. I check into the site and saw that they formed their organization with OUR name in 2012. I’m mad and have contacted attorneys and am going through the copyright and trademark process–is there any way without using these attorneys to make people stop using our name? Thanks.

    0
  9. 409

    Hi,
    Thanks for the info-rich article.

    Q: Do I have the right to use the image that I took of a firetruck or police car (without people) for commercial use (e.g. on a card game)?

    0
  10. 460

    Calrissian Steele

    July 7, 2013 4:32 pm

    What about clips of a movie that are altered? Is that fair use?
    Like if it’s some footage but the sound has been changed to something that was yours?

    My example is footage of Jigsaw (from the Saw movies) and it is from the movies, but the voice was done by me and what I am saying was made up on my own. Is that ok or is that still a problem?

    0
  11. 511

    Hi,
    My doubt may sound simple..

    I am writing a software and want to publish it as open source under MIT license.
    Can I achieve that by using the MIT license text in my source code and changing few places like author name and copyright year?
    Or Do I need to apply somewhere with my code to get the license approved as we do for patenting?

    Please reply. Thanks!

    0
  12. 562

    If there is a copyrighted picture of me, and I didn’t sign a release for it … can I, for example, recolor it and use it as I want?

    0
  13. 613

    Very useful guide. I just wondered whether this is aimed more towards UK or US copyright law? There are quite a few differences between the two!

    Ally,
    http://www.emubands.com

    0
  14. 664

    As something of an old-timer I’m quite new to the concept of an online portfolio and so, not only am I not sure of my copyright obligations, I don’t even know where to look for answers. Most readers of this blog probably know the answer to these questions, can someone help?

    I’ve recently created an online portfolio on Behance. Most of the work I have posted are samples of pages from printed books that I designed while a full-time employee of the publishing companies. I assume that I have the right to post this work without permission from the book publishers so long as it is exclusively in the context of my design portfolio. Please correct me if I’m wrong, or if it’s more complicated than that?

    What may be more complicated: I have also uploaded some screens from some animated CD-ROM activities, and a video of one in action. The Flash developer has assured me he has no issues with this. However I would like to add the audio track that goes with the animation, and this is a copyrighted music recording, for which the publisher secured the rights to use in the animation. Would this be considered fair use to include in my portfolio, or do I need to seek permission from the copyright holder for the music recording?

    0
  15. 715

    Great article David.

    0
  16. 766

    nice article david..

    1

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