In which cases must I relicense my product under the CC BY-SA license?

Question

Because copyright law can encompass a huge range of scenarios and be unclear to talk about in abstract terms, I'm going to give concrete examples. I understand CC BY is a permissive license. All it requires is attribution, a copy of the license, and perhaps a list of any modifications made. However my question is about CC BY-SA.

I have spoken to people who have claimed that using any CC BY-SA content, such as a photo from Wikipedia, requires you to license your work that contains that photo under the same license. They likened it to the GPL license, where once you include any piece of GPL content, then your entire project must be licensed under GPL also (it spreads). First of all, I don't know if this is strictly true in all cases, but I'll move on.

The CC license mentions two terms: "collection" and "adaptation". The term "derivative work" is something I think was used in earlier versions, but I didn't find it reading the most recent ones.

So now for the concrete examples. There is an Ancient Greek sculpture named Venus de Milo. Here is a photo of it on Wikipedia, and the photo is licensed under CC BY-SA 4.0.

If I use this photo in content of my own, in which cases must I release my ENTIRE work under the same license?

1. I print a large number of and distribute flyers containing a copy of this photo and containing a few paragraphs about its history. I may sell these or give them away for free.
2. I publish a book about Ancient Greek art, and I include a copy of this photo and spend multiple pages discussing the subject of the sculpture.
3. I publish a book on nutrition and a copy of this photo is printed somewhere in the book.
4. I publish a book and this photo is featured on the front cover of that book.
5. I make a collage poster featuring different works of art, and one of the components is a copy of this photo.
6. I make a fictional film that features a copy of this photo. It appears in my film for no longer than 5 seconds and is not related to my film.
7. I make a documentary film about Ancient Greek art and spend a considerable time discussing Venus de Milo, and this photo is shown throughout the film considerably.
8. I make a video game where this photo features briefly.
9. I make a video game where this photo is seen for considerable periods of time, perhaps as a background.

The thing about the Sharealike component of CC license is that:

share alike – If you remix, transform, or build upon the material, you must distribute your contributions under the same or compatible license as the original.

So we have the terms such as "remix", "transform" and "build upon the material". However it says I must distribute my contributions to the original. In all of the 9 examples I've given I don't see how I've "contributed" to the original work. Perhaps if I'd made such modifications such as changing the color, brightness, contrast, crop the photo etc., then I could see this as contributing to the original.

As far as I can see I am incorporating the content into a larger work. I don't know if this falls into the category of "adaptation", "collection", or "derivative work".

Also, a very important point I'd like to know about, let's say I make film that features this photo in it briefly, and I've made modifications to it, is it the modified photo I have to license in the same way, or is it my entire film that I have to license the same way because of this one piece of content which is Sharealike?

I know this is a complicated question, but I think the nature of the topic is complicated. I hope I didn't complicate things any more than they need to be.

Also, just one final thing. If the answer is that I must make my whole production under the same license because it's a copyleft issue (like the GPL, that spreads), I can give the example of the text on Wikipedia being CC BY-SA, but I doubt anyone would suggest that if I use a quotation from a Wikipedia article that I need to license my entire project or effort under a CC Sharealike license also just because Wikipedia text is licensed in that way. Wikipedia quotes only require an attribution with a link.

Answer 1

That is a lot of questions for one post, and you don't say what jurisdiction you're in. Nevertheless, and noting that IANAL/IANYL, I'll try to answer at least some of them.

My principal authority is Drauglis v. Kappa Map Group. As I said in an earlier reference to this case, the writeup linked is rather emotive and misspells the plaintiff's name throughout. Nonetheless, it has the summary correct: the use of a CC-BY-SA image as the main cover photo for a book made neither the entire book nor the cover alone a derivative work of the cover photo. As the judgement put it, "the Court finds that neither the atlas nor its cover constitutes a derivative work subject to the ShareAlike requirement". This isn't a binding authority anywhere, but it's one of the few guiding lights we have on how this issue might be litigated.

On this basis, my answer to your question 4 is no, you do not have to release your entire work CC-BY-SA if you use the photo on the cover. Similarly, I feel you would not have to release the entire work CC-BY-SA in cases 3, 2, 1, 8, and 6.

Cases 7 and 9 I just don't know. I'm aware of no authority that sheds any light on such cases.

Case 5 is to me the thorniest of all, because being a mashup, and a work of similar type (2D art), it is most arguably a derivative work of all the component artworks that go into it. If you produced for sale a similar work featuring lots of unlicensed reproductions of images of great works of art, I suspect that the museums holding the copyrights would come down on your head. So my guess is that the whole collage would need to be released CC-BY-SA in order to be a lawful use of the photo in question, but it's only a guess.