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Let's say that Alice makes a video and releases it under the CC-BY-ND license. Bob now wants to use a still frame from the video in his work (maybe to showcase or aggregate thumbnails of Creative Commons videos). Multiple places on the Creative Commons website, including the license deed for CC-BY-ND and their FAQ, emphasize that:

Merely changing the format never creates a derivative.

and

All CC licenses allow the user to exercise the rights permitted under the license in any format or medium.

This suggests that changing a MP4 file to, say, an AVI file is not considered an adaptation. However, taking a still frame from a video seems a bit unclear. On one hand, it could be interpreted as "converting" the file from one format to another (for example from MP4 to GIF) and it would not be an adaptation. On the other hand, the use could be considered "transformative" and therefore a derivative work since Bob chose a still frame that represented the whole video (or another way to think of it is that he "cropped" all the other frames of the video out and therefore modified the video, which would then make it a derivative work). Here are my questions:

  1. Is Bob's usage considered a derivative work under US copyright law?
  2. Is Bob's usage considered an "adaptation" under the CC-BY-ND license? If it makes any difference, let's say that Alice has licensed her work under the 4.0 version of the license.
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1. Is Bob's usage considered a derivative work under US copyright law?

Possibly.

Under US law, 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”.

Lee v. A.R.T. Co. - 125 F.3d 580 (7th Cir. 1997) is on point here. There the court held that originality was essential to a derivative work.

The selection of a particular frame out of the many available is an editorial choice that possibly meets the threshold for originality and is, therefore, a derivative work. Or it isn't and it is merely an abridged reproduction of the original.

It depends on the facts.

These include how much editorial originality the selection of the particular frame requires (e.g. the choice of a single frame from a highly dynamic video like a fight sequence requires more originality than the choice of a frame from a pan across a static landscape) and the circumstances surrounding its use.

2. Is Bob's usage considered an "adaptation" under the CC-BY-ND license?

Maybe.

If it’s a derivative work under applicable work then it is ipso facto an adaptation because that’s how the licence defines adaptation. If it isn't, then it isn't.

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    A still frame may simply be a direct copy of part of the work, another of the bundle of rights that come with a copyright. – ohwilleke May 19 at 22:36
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    @ohwilleke edited to hopefully make that clearer. – Dale M May 20 at 2:01

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