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Alice created a work and died without publishing it. Bob and Charlie jointly inherited the copyright. All three live(d) in the United States. Bob wants to publish the work under a Creative Commons license, specifically CC BY-SA 4.0, but he would prefer not to have to communicate with Charlie.

Generally, under US copyright law, only one copyright holder needs to agree to grant a non-exclusive license. This would apply to Creative Commons licenses, unless they are either considered exclusive licenses, or they specifically require the consent of all or a majority of the copyright holders. Are there any terms in Creative Commons licenses that, under US law, would require Bob to obtain Charlie's consent?

If Bob can release the work under a CC license, that leads to the question, How should Bob write the copyright and license notice? Typical CC copyright notices assume that the work is being released by the author; if Alice had granted the license while she was living, she would have used something along the lines of this:

Copyright 2000 Alice. Licensed under Creative Commons Attribution-ShareAlike 4.0 International license.

Presumably Bob shouldn't just use that, because it appears that Alice issued the license. Perhaps he could write this?

Copyright 2000 Alice. Licensed under Creative Commons Attribution-ShareAlike 4.0 International license by Bob.

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    Have you read the CC BY-SA 4.0 license? Are there any specific terms that cause concern for you? And have you considered the wording "Copyright 2000 Alice. Copyright 2024 Bob and Charlie. ..."? Commented Mar 17 at 18:11
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    In fairness, the OP has been round the houses in the evolution of this question. If I understand it, US law (weirdly) allows anyone owning a share in a copyright to licence the work unilaterally (but they must then account to the other rightsholders for any proceeds therefrom) and they can't licence it exclusively, as that deprives other rightsholders of their interest. So the question then becomes: is there a way to unilaterally freely licence such a work, or do free licences implicitly in some way deprive the other rightsholders of some or all of their interest in the work?
    – MadHatter
    Commented Mar 18 at 6:54
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    I am not an expert in US law. If any revenue gained through commercializing the copyrighted work needs to be shared amongst all the copyright holders (inheritors), the question arises if that will extend to the revenue gained by Bob's licensees. As everyone knows, CC BY-SA 4.0 allows commercial use, therefore revenue is not excluded. Bob would be in the impossible position to account for revenue he is unaware of. I do not know the answer to this question. CC BY-NC 4.0 would be a possibility, but it is not 'free'. Commented Mar 18 at 9:00
  • @Martin_in_AUT, I don't think it could extend to the revenue of licensees, because that would effectively block any license that allows commercial use in exchange for a lump-sum fee. In most open-source cases, that fee just happens to be $0.00 Commented Mar 18 at 10:12
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    @BartvanIngenSchenau So now we are in a similar position. I don't know, you don't think. What we are both missing is hard facts. 'Logic' is just not always a good approach in the US legal system ;-) Commented Mar 18 at 10:45

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Please do not do this without consulting a qualified copyright attorney, or getting Charlie's permission.

Here is the problematic clause:

To the extent possible, the Licensor waives any right to collect royalties from You for the exercise of the Licensed Rights, whether directly or through a collecting society under any voluntary or waivable statutory or compulsory licensing scheme. In all other cases the Licensor expressly reserves any right to collect such royalties.

Bob has a duty to share the proceeds of any non-exclusive licenses he may enter into. If Bob responds to that duty by offering a license which explicitly waives the right to collect royalties, it is at least conceivable that Charlie could sue both Bob and any (hypothetical) commercial licensee under a theory of unjust enrichment. The argument is, essentially, that Bob and the licensee have conspired to deprive Charlie of his share of the proceeds. Another interpretation (if you want to insist that the license is not a conspiracy) is that Bob has undermined Charlie's practical ability to collect royalties from anyone, in violation of Bob's duty to account, and the licensee has wrongly benefitted from Bob's action.

It must be emphasized that unjust enrichment has nothing to do with copyright per se. It is about money. Bob had a fiduciary responsibility to Charlie, he (arguably) failed to uphold it, and this resulted in some licensee obtaining a benefit that they would otherwise have had to pay for. The problem, however, is that we have very little case law dealing with open-ended licenses like the Creative Commons family. We do not know if this theory of unjust enrichment would succeed, or what remedies a court might plausibly order if it did. What we do know is that this would create a great deal of unwanted legal uncertainty for any prospective licensee. Bob may think that he is providing a benefit to the public at large, but the reality is that he is setting a trap for the unwary.

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