CC HowTo #4: How to use a work with a No Derivatives license

Creative Commons offers two licenses with the No Derivatives requirement: Attribution-No Derivatives (BY-ND), and Attribution-NonCommercial-No Derivatives (BY-NC-ND).

No Derivatives licenses permit people to copy and distribute a work as long as they do not change it or create derivative works. These licenses ensure that no matter how many times a work is copied and shared, the content of the copies will be the same as the original. ND licenses do not permit remixing or adaptation.

Here’s the description of No Derivatives in the human readable Commons Deed:

No Derivative Works. You may not alter, transform, or build upon this work.

Here’s the pertinent language in the legal code:

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats, but otherwise you have no rights to make Adaptations.

Verbatim or unaltered copies are not derivative works or “adaptations.” They’re simply copies, and as long you comply with the other terms of the license you can make and distribute exact copies of a No Derivatives-licensed work.

What is a derivative work?

It’s a bit complicated.

According to Title 17 Section 101 of the Copyright Act:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

The key words here are “recast, transformed, or adapted.” A derivative work involves enough creativity and originality that it constitutes a new copyrightable work. Simply converting a work from one medium to another — from print to digital, or CD to MP3 — does not produce a derivative work.

One Exception

In general, the kinds of adaptations that the No Derivatives license prohibits match the definition of derivative works in the Copyright Act, but there is an exception: Songs used in video. No Derivatives licenses use the word “Adaptation” instead of the legal term “derivative work,” and include this language in the definition of “Adaptation”:

For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with a moving image (“synching”) will be considered an Adaptation for the purpose of this License.

Using an unaltered song in the soundtrack to a video does not make the video a derivative work, because the song itself has not been recast, transformed, or adapted in any way. However, the language above extends the definition of adaptation to include “synchronization of [music] with a moving image,” which means that as far as No Derivatives licenses are concerned, videos that use an ND-licensed song violate the terms of the license.


Examples of adaptations as defined by the ND license

  • Translating a short story from one language to another
  • Photoshopping a picture to add to or alter its original elements
  • Using a sample from one song to make new song

Examples of things that are not adaptations as defined by the ND license

  • Including a short story in a collection of short stories
  • Reproducing an unedited image on a website
  • Using an unedited video in the background of a live concert

Two things to keep in mind

  1. Creative Commons licenses do not affect your fair use rights. No Derivatives licenses do not prevent people from making fair uses of the work, which may include copying excerpts, creating parodies, and other activities that involve using the work without making an exact reproduction.
  2. If you would like to use a CC-licensed work in a way that is not permitted by the license, you can ask for permission. Copyright holders are free to offer as many different non-exclusive licenses as they wish. No Derivatives licenses don’t rule out the possibility of making a derivative from the original, you just have to ask for permission to do so.

Previous CC-HOWTO’s:
How to attribute a Creative Commons licensed work
How to use a work with a NonCommercial license
How to use a work with a Share Alike license