How can I use icons under a CC-ND license?

Question

I am developing an open-source Java desktop application and I would like to use some icons in the GUI to indicate various settings, external links, etc. I found a set of free icons that are published under the Creative Commons Attribution-NoDerivs 3.0 Unported license that I would like to use.

My questions are:

• Would including such an icon in my application constitute an adaptation or derivative work, and as such be a violation of the license?
• The icons are a little too big for my use case. Am I allowed to include scaled-down versions in my application? And would there be a difference between scaling them in photoshop and including these modified images versus including the original images and scaling them down programmatically?
• I would like to release my program under the Apache License 2.0. Does this have an effect on whether I can include the icons or not? Would I need to take any extra steps, other than including the original copyright and license information for the icons in my NOTICE file?

Edit:

An ArsTechnica article titled "Creative Commons images and you: a quick guide for image users" states that

More subtle alterations, like cropping an image to make it fit your page width, might seem to be a gray area, but as long as you don't make enough changes so that your version, when taken as a whole, qualifies as an original, copyrightable work in its own right, then you should be safe.

So the second question essentially becomes:

• Does a scaled down version of an icon qualify for copyright in its own right?

And if the answer is "no", then it is not considered an Adaptation and therefore not prohibited under the terms of the license.

Answer 1

Most of these questions can only be answered with confidence by a lawyer. I am not one, but I will try to give some insights.

• Creating scaled versions of the icons is probably fine. Copyright is awarded for the expression of creativity and it doesn't take any creativity to scale an image. Other transformations, even scaling the width and height differently, are more problematic, because it does take creativity to decide if the result looks good.
• The Apache license does not affect anything except the code you explicitly license with it. You need to give the proper attribution and license information for the icons you include, but the Apache license does not impose any additional requirements or problems here.
• Distributing the software and the icons in one package is not likely a problem, but to be sure you could contact the copyright holder of the icons to ask if they consider distribution with an application to be the creation of a derived work. If they do, consider distributing it as two packages.