Licensing questions

Advice for those new to the concepts of copyright
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Licensing questions

Post by cindylin »

I am considering purchasing some images from a website:
And I found in the license agreement
If the File is used to create an item NEITHER for Resale NOR for Free Distribution, the Standard License is always appropriate.
If the File is used to create an item for Resale or for Free Distribution:
if the File plays a minor role in the item, the Standard License is appropriate;
if the File plays a major role in the item, the Extended License is appropriate.
Item for Free Distribution: An item that will be distributed to a wide audience without raising any commercial revenue (e.g., free web templates, postcards, flyers, etc.).
The role a File plays in an item is determined by the value the File adds to the item and how much the File influences a customer’s decision to choose this particular item among similar items.

A major role: A File is considered to play a major role in an item if the File is a primary, defining, or important part of the item, increases the intrinsic value of the item, or influences a customer’s preference for this particular item.
A minor role: A File is considered to play a minor role in an item if the File is an incidental part of the item, does not add significant value to the item and does not influence a customer’s preference for this item.

And I also found similar terms on another website
You may only distribute the Work as incorporated onto an item of merchandise if (i) the Work has been modified to the extent that the modification is not substantially similar to the original Work and can qualify as an original work of authorship or (ii) the primary value of the item of merchandise does not lie with the Work itself. For clarification, producing an unmodified Work on a poster is not permitted as the primary value would lie in the Work itself.
And I have some questions regarding the license terms:
1. As for the term"distribution" or "distribute", what is the exact meaning? If I upload some e-posters on my website and allow others to download themselves in the legal disclaimer of my website, is it a kind of "distribution"? Or only sending the images out via email or other ways to others can be considered "distribution"?
2. How can I measure the "major role" or "primary value"? For example, if I add some texts and features onto an image, like this, can the image be considered "major role" or "primary value"?
fig 1:
fig 2:

I have contacted the websites with my question. But they cannot give me a clear answer and ... even when I asked the same question to different representatives from the same website, they give me completely different answers :( So I'm seeking your help...
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Re: Licensing questions

Post by AndyJ »

Hi cindylin,

If you had not added that final paragraph I would have said you should contact the website you hoped to use for clarification of their terminology. But since they appear unable to provide clarification, I'm not sure how much I can help. If a special meaning for words like 'distribution' are not explained within the overall terms and conditions, they will normally be considered to have their normal dictionary meaning, or if they are technical terms used within a particular industry, that special meaning. And of course there are certain legal terms which appear within contracts which have a special meaning (eg 'consideration').

That having been said, the extracts which you have provided seem to envisage both publication (ie providing something to the public) and making something available to the public (ie the public may access the item from a particular place at a time of their choosing). Both these concepts are reasonably well understood within the law concerned with copyright (Article 6 of the WIPO Copyright Treaty).

As for your second question, I would say that in both of your examples, the image is purely secondary. In both cases, the purpose of the overall page would be largely unaffected if a different image, or indeed no image, was used. Therefore the actual image chosen cannot have anything other than a minor role, and certainly plays no part in 'selling' the main product, which in this case is a quotation from the bible. In the case of the Fotolia terms and conditions, as I read them, since you are not dealing in merchandise, the remainder of that condition, namely that the image must be altered, does not apply, and so use of the image does not make it of primary value. An example of primary use might be a picture of the actual item which is for sale, such as a car or a house, where the picture may have an important role in persuading the viewer to consider buying the product.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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