Re: Licensing pictures within an application
On 9/30/05, Lewis Jardine <email@example.com> wrote:
> The latter /is/ a problem: if the images are not merely aggregated with
> your application (for instance as a sample images in an image viewer),
> but used in program's user interface it is likely that the image is
> considered part of the whole work by GPL section 2. Copyright law is
> more interested in artistic intent than technological method; if the
> image is included with a program with the intent for it to be a logo or
> a widget for the program, then regardless of whether it's part of the
> appication's binary or a separate file, it's likely that the image will
> be considered part of a work derived from (or consisting of; I hope not
> to restart the 'creative transformation/derivative work' discussion) the
> rest of the program's source code and the image, and not a separate work
> aggregated with the program.
> If the images are indeed part of the work and not just merely
> aggregated, the GPL will only grant permission to distribute the rest of
> the work if the image is licensed (or licensable) under the GPL.
Oh dear, tell that to Red Hat.
> you distribute the same sections as part of a whole which is a work
> based on the Program, the distribution of the whole must be on the terms
> of this License, whose permissions for other licensees extend to the
> entire whole, and thus to each and every part regardless of who wrote it.")
If identifiable sections of that work are not derived from the
Program, and can be reasonably considered independent and
separate works in themselves, then this License, and its terms,
do not apply to those sections when you distribute them as
But when you distribute the same sections as part of a whole
which is a work based on the Program, the distribution of the
whole must be on the terms of this License, whose permissions
for other licensees extend to the entire whole, and thus to each
and every part regardless of who wrote it. (GPL section 2.)
According to the first sentence, the entire GPL applies to a
"modified work as a whole." Under the copyright law, such a
"modified work" is a derivative work. (17 U.S.C. § 101.) So
far, there is no hint that linking makes a difference.
The second sentence refers to portions of the work that "are
not derived from the Program"—that is, are not derivative
works. This necessarily means works that have their own copyrights,
their own copyright owners, and potentially their own
licenses. So the second sentence is true regardless of whether
the independent and separate works are linked in some way to
the GPL software. Such works remain "independent and separate
works," at least "when you distribute them as separate
works," and the GPL cannot possibly apply to them without
their copyright owner's consent.
The third sentence refers to those "independent and separate
works" when they are distributed "as part of a whole."
Once again, we are reminded that the GPL applies to the
whole work. But how are we to understand its reference to
"the same sections as part of a whole which is a work based on
the Program" and later "to each and every part regardless of
who wrote it"? Is this a reference to the Copyright Act?
The copyright in a compilation or derivative work extends
only to the material contributed by the author of such work,
as distinguished from the preexisting material employed in
the work, and does not imply any exclusive right in the preexisting
material. (17 U.S.C. § 103.)
All that the third sentence of GPL section 2 could possibly
mean under the copyright law is that, for a work to be made
available under the GPL, its preexisting component parts must
be available to all subsequent licensees. The licenses to those
components must permit that combination. That much is
necessarily true for any software containing components
licensed by others. The law makes it clear that the GPL can't
affect the licenses to those preexisting component parts.
Again, linking doesn't matter.
The GPL then expresses its intent this way:
The intent is to exercise the right to control the distribution
of derivative or collective works based on the Program. (GPL
That may be the intent, but is that what the GPL actually
does? This is a critical example of imprecise phrasing. Who
gets "to exercise the right to control" distribution? Certainly
the owner of a collective or derivative work gets "to exercise
the right to control" those works, and the owner of each contribution
gets "to exercise the right to control" his or her contribution.
(17 U.S.C. § 103[b].)
Does the phrase based on the program refer to both derivative
and collective works? That isn't technically correct, at least
under the U.S. Copyright Act, because a derivative work is a
work based on one or more preexisting works, but a collective
work is not. (17 U.S.C. § 101.)
Finally the GPL directly addresses the distribution of collective
works, noting that the GPL does not apply to them:
...In addition, mere aggregation of another work not based
on the Program with the Program (or with a work based on
the Program) on a volume of a storage or distribution medium
does not bring the other work under the scope of this License.
(GPL section 2.)
The copyright term "compilation" includes "collective works."
And perhaps also
("sleepless nights..." ;-) )