I believe a publisher is infringing copyright when reproducing a figure I created. What can I do?

You attempted to use a crayon license, that is, modify the terms of an existing well-established license to better suit your needs.

This is frowned upon, because it can cause legal complications. In particular, the license CC-BY-NC 4.0 license that you attached to your work states

The Licensor shall not be bound by any additional or different terms or conditions communicated by You unless expressly agreed.

or, in other words (human-readable version on their website)

No additional restrictions — You may not apply legal terms or technological measures that legally restrict others from doing anything the license permits.

The CC folks officially forbid you from using that name and logo if you do modify their terms:

Can I change the license terms or conditions?

Yes—but if you change the terms and conditions of any Creative Commons license, you must no longer call, label, or describe the license as a “Creative Commons” or “CC” license, nor can you use the Creative Commons logos, buttons, or other trademarks in connection with the modified license or your materials.

So it is going to be difficult to argue for your additional restrictions in court. They are likely to be void. For legal purposes, we can assume that your work is licensed under an unmodified CC-BY-NC 4.0.

Notice 1 still stands, because the CC license allows you to specify your preferred name and wording for the attribution (and it seems to me that they complied with it in the book). Notice 2 is void. Notice 3 still stands, because the license only covers non-commercial use.

So Elsevier is infringing it because they are using it in a commercial work, right? In principle yes, but you wrote that you had an exchange with them and essentially authorized them to use it in the book under the terms listed in Zenodo. We would have to review your full conversation with Elsevier to see what you really wrote to them.

Disclaimer: IANAL.


If you think Elsevier is infringing your copyright, then you are infringing on others (1, 2, 3, 4)

That chart is very standard. The information itself is uncopyrightable. The only thing that stands out is the rainbow spectrum, but even then you weren't the first to draw it like that, see this book published 2006: 5.

I'm sure the people working in the copyright clearance department of Elsevier have far more experience than you, or nearly everybody here, in these matters, who like me, isn't a lawyer.


Up-front: I am not a lawyer.

This is all complicated somewhat by both the "addon" clauses that you've tried to include, and the conversations with Elsevier in which it sounds as though you may have given them permission.

Every CC license requires users to,

attribute the creator of licensed material, unless the creator has waived that requirement, not supplied a name, or asked that her name be removed. Additionally, you must retain a copyright notice, a link to the license (or to the deed), a license notice, a notice about the disclaimer of warranties, and a URI if reasonable. (from https://creativecommons.org/faq/)

Elsevier have attributed the creator, but they have not shown any copyright notice, have not shown that the figure is CC-licensed, or provided any link. A casual reader of this book would assume that Elsevier owned the copyright on this figure, which is not correct. On this basis, then, they are in breach of the license and hence have no right to use it.

However, if this were simply the CC-BY-NC license that you applied to the work, they'd be in breach anyway because they're a commercial organisation. So the question is whether they are using the figure incorrectly under that CC license, or whether they are using it under another license or permission that you have (deliberately or otherwise) granted them in email. Or whether they are breaching copyright.

That, I fear, may be one for the lawyers.

[1] They've recreated it, not reproduced it, with some differences - but I'm fairly sure that that makes no difference.