Book Cover Image Copyright for Dummies

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January 29, 2014 by Mod

Recently I’ve had to explain image copyright to a couple of people. No fault of theirs really – we can’t all be experts on everything – but it certainly underlines the importance of working with a reputable designer who can properly advise you. If you DO insist on making your own cover, or getting your brother who is quite good at scrapbooking to do it, what follows is a kind of primer on copyright.

Edit: some people reading this article have been getting confused, so let me stipulate up front – YOU DON’T NEED TO OWN THE COPYRIGHT TO AN IMAGE TO PUT IT ON YOUR BOOK COVER. YOU NEED A LICENSE TO USE THAT IMAGE. PURCHASING IMAGES FROM REPUTABLE STOCK IMAGE PURVEYORS GRANTS YOU THAT LICENSE. ALL MY COVERS AND THOSE OF MANY OTHER REPUTABLE COVER DESIGNERS ARE DONE WITH PROPER LICENSING. An artist or photographer can also grant you a license directly however you need to make sure they also hold a model release (explained below).

1. ALL CREATIVE OUTPUT IS SUBJECT COPYRIGHT.

That’s right, I said ALL. But let’s limit ourselves to images, like those that might make nice book covers. Many people, including some unethical “designers”, seem to think that if the copyright of an image is not specified then it is copyright free, what is also sometimes known as “public domain”. In fact the opposite is true. Unless the copyright is specifically relinquished (through a number of ways which I won’t discuss here) the copyright belongs to the creator of the work. Confused yet? Allow me to demonstrate:

Witness this image:

2012-02-25 22.34.36I took this picture. I have placed it on this blog. I have not indicated any copyright to it. And yet if someone thought they might like to put this spooky building on the cover of a book they do not have permission to do so. They could ask me if I would sign over the copyright (the answer would be no). They could ask me if I would license the image for a single book cover (I might). But they cannot use this image just because they found it and I haven’t put a © on it. That is not how the law works.

If someone did put this image on a book cover I would be entitled to sue them. They might even be subject to prosecution. Ever read those FBI warnings at the beginnings of movies? You know the one that tells you the penalties for unauthorized copying are a fine of $250,000 and up to FIVE YEARS in prison? That’s what I’m talking about.

So, to sum up: NEVER assume an image is copyright free.

Most of the time when people fall afoul of this it’s because they have found an image on a so called “Free Wallpaper” site. Wallpaper sites sell or give away images to decorate the screen of your computer or phone and NOTHING ELSE. You can’t use them in any other way. Most of these sites are dodgy, include stolen images and have little or nothing in the way of terms of use. THEREFORE automatic copyright law applies. In other words – the artist or photographer owns the copyright. Period.

2. So called “Creative Commons” and “Free” stock sites might not be.

Many designers go to free sites such as Flickr and Morguefile for images, thinking that because it says right there on the site that the images are free to use and adapt, even for commercial purposes that they can make a book cover out of them. Well…it’s not that simple.

Look at this image for example:

A lovely image that would make a lovely book cover. The photographer has uploaded the image to Flickr and attached a Creative Commons attribution only license to it. This means, technically, that they have given permission to use it for any means as long as you give credit. There’s only one problem. Can you guess it?

Where is the model release? A model release is something that you sign when your image is recorded in any means wherein there might be a profit. It releases the profiteer from sharing those profits with you. Since there is no model release on this photo I can only assume that none was ever signed. Therefore if I put her on the cover of my New York Times bestseller, technically I might have to share some of my profit with her.

Awkward.

Images from reputable stock image sites such as Bigstock have model releases on file where needed. Better safe than sorry

3. Purchasing a design doesn’t mean you are absolved of blame

Let’s say an unethical “designer” sells you a cover with a copyright image without obtaining a proper license. It’s their fault, right? Wrong. If you are using the cover you are still breaching copyright. If someone loves your book so much that they turn the cover into t-shirts and sell them at Ren Faire THEY are breaching copyright.

In other words you’re BOTH subject to suit and prosecution. Does it happen? Yes it does. The creator of the famous Barack Obama “Hope” poster got sued AND charged with a crime. He very nearly did time for it. It could happen to you, especially if your dream comes true and you become a bestseller.

Better. Safe. Than. Sorry.

4. Purchasing a license doesn’t not mean that you OWN the image.

Wait. What? That’s right. What you are purchasing is a license to use the image in a particular, sometimes limited way. For example you might be limited to number of copies.  You might only be permitted to use the image in one application, say a book cover. This means that if you want to write a sequel and use the same image for another cover you might need to purchase another license.

Seems unfair, but is it? When you consider that most stock image license are very affordable, including ones used on NYT bestsellers such as BULLY by Penelope Douglas (which derives from this stock image). Her designer might have paid AT MOST $100-200 for it of which the photographer might get $60. Probably a lot less. The models got paid on the day of the shoot. Maybe minimum wage. More if they were lucky, but given that a lot of stock photography is done in the developing world or Eastern Block, probably not.

And it’s unfair to YOU?

5. Just because someone draws or designs something for you, you don’t own the copyright EVEN IF YOU PAY.

That’s right. If you want to take over the copyright you have to be assigned it. It’s a contract, full of scary legalese. I confess I have been somewhat lax with these, but I’ve recently had a boilerplate contract drawn up for use in future designs. You can find it here.

6. So what IS free to use?

Well, quite a few things. Images from Wikipedia Commons are relatively safe, but you need to check them, especially if they depict a living human. Some have copyright notices on them. Some say they are Creative Commons licensed but look a bit sketchy to me. Some things you can be SURE are safe to use are things that are public domain. Roughly, these include artworks (including photographs) by artists who have been dead for more than seventy years. This is the reason regency paintings were once so popular on book covers (they are out of style now).

Some argue that a photograph of an artwork is copyright to the photographer that took it (say a gallery curator), but the USA Copyright Office has taken a position against that. Some art galleries will try to claim copyright of images of their public domain holdings but their claims would likely not hold up in court. Still would you want to go to court against the Metropolitan Museum of Art? I wouldn’t. Some museums have put their collections online for Creative Commons use. Some others charge a small fee.

Be safe. Get it in writing.

I know I go on about this, but as a content creator myself it really bugs me. And that’s the thing – if you’re an author, you’re a content creator too. How would you feel if someone lifted a chapter from your book and used it for their own book (it happens – a LOT). Worse, what if someone lifted your book from Smashwords or another online retailer and started selling it on their own site without paying you royalties? Mad, right? That’s how photographers and artists feel when they get ripped off.

Finally, some of you are probably thinking “Yeah? What about the book covers you posted above, huh? What about THAT? Isn’t THAT copyright infringement? Who’s an image thief now?” Well, interestingly, there exists fairly clear ruling on this which you can read about at your leisure here and here. Suffice it to say that showing a copyright work for the purpose of commentary falls under “fair use” in most circumstances.

Using images for your own books covers doesn’t. Sorry.

Rant over.

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30 thoughts on “Book Cover Image Copyright for Dummies

  1. Karen Branch says:

    I would love to see the contract you offered to share.

  2. Copyright infringement is not a criminal matter, it is a civil matter. The artist who did the Obama Hope poster was charged with criminal contempt for lying about certain facts in the civil matter and for destroying evidence. Telling lies to a court of law is a completely separate, and very serious matter. It’s incorrect to imply that copyright infringement is a criminal offense. It’s not.

    • “Copyright infringement is a crime if the defendant acted willfully and either (1) for commercial advantage or private financial gain, (2) by reproducing or distributing infringing copies of works with a total retail value of over $1,000 over a 180-day period, or (3) by distributing a “work being prepared for commercial distribution” by making it available on a publicly-accessible computer network.[52] Copyright infringement is a felony only if the infringement involved reproduction or distribution of at least 10 copies of copyrighted works worth more than $2,500 in a 180-day period, or involved distribution of a “work being prepared for commercial distribution” over a publicly-accessible computer network.[53]”

      (http://itlaw.wikia.com/wiki/Copyright_infringement)

      I’m not a lawyer but that seems pretty cut and dried. It IS a criminal offense, just not often prosecuted as one. And I know that the HOPE artist was prosecuted for tampering with evidence. But he never would have done had he not been first sued in civil court.

      It’s kind of like weighing your marijuana – “Do I have enough to be charged with trafficking? Or is this just a misdemeanor?” Wouldn’t it be safer to not carry it around at all?

    • Carolyn, You’re right that most copyright infringement is a civil matter, but there are times and situations, where it is a criminal offense.

  3. I would like to re-emphasize that owning the copyright to your words is NOT the same as owning the rights to the files where those words are laid out for printing, or to the cover files.

    This is a particularly big problem for those folks who fall for the idea that using a “self-publishing company” is the same thing as self-publishing. They read “keep all rights to your work” and think that they’ll own the cover and interior files. They don’t, unless those rights are separately granted to them by the publisher (which is the company that owns the ISBN block).

    Even if you “do your own cover,” using their template, it’s not yours, because the template wasn’t yours — UNLESS the contract says differently.

    Yet another “gotcha” from the Pay to Publish industry.

    • Indeed, and that’s why those who you the pay-to-publish schemes cannot change anything in their work even if they find “Junuarie” instead of “January” in the title unless it is the self-publishing company doing it, and they can legally refuse.

  4. texasdruids says:

    Reblogged this on Lyn Horner and commented:
    This is an excellent article by gsprendergast about the danger of copyright infringement on book cover images and how to avoid it.

  5. texasdruids says:

    Thank you for sharing your knowledge of copyright law. I added this article to my favorite and have reblogged it.

  6. Hiram Legree says:

    The following comment by Ms. Jewel is no gem of wisdom. It is astonishingly ignorant and plain wrong. With rare exceptions, copyright infringement is BOTH a criminal violation AND a civil violation (“tort”). This fact means that an infringer can be BOTH criminally charged by the feds AND sued in civil court by the rights owner of the material at issue. Penalties in either case are severe: infringement of a timely-registered image can be punishable by fines of up to $150,000 per image in civil penalties.


    Carolyn Jewel
    January 30, 2014 at 12:33 pm
    Copyright infringement is not a criminal matter, it is a civil matter…. It’s incorrect to imply that copyright infringement is a criminal offense. It’s not.

  7. Iola says:

    Excellent article, and thanks to Marion for her comment as well. Just another reason not to use one of *those* publishers.

    I’m told that technically, these cover images aren’t actually on your website. They are Amazon links, which means your website has an empty white box, and Amazon has kindly inserted the relevant cover images.

    Is this correct?

    • This is only if you are an Amazon affiliate and they give you some code. I can’t be bothered with that. I go with Fair Use instead. But I usually link to Goodreads or Amazon anyway.

      • igoultonla says:

        Thanks. I write book reviews, and do use the Amazon affiliate codes – more so I’m using the images with permission than for the money (it earns me around 80cents per month 🙂 ).

  8. Actually, you could be in violation of copyright just for posting the image of that building, since architecture also falls under copyright laws. If you look at the model releases on many of the royalty-free sites, you now need permission from the owners of many buildings if you want to sell their images. I’ve even had trouble with an image of a dog, because his ID tag was visible in the picture.

    • That’s true about Architecture, but the same Fair Use rules would apply in my use of it in this post. It is used for “commentary”. If I was to sell it as a book cover, I would be well served to check it out first. I somewhat doubt it would pose a problem – the building is over 100 years old. But you never know. Landmarks such as Big Ben and the Eiffel Tower I believe might be trademarked, but that is another thing.

  9. […] think about to make sure you’re getting the cover of your dreams. I have posted about this here, here and here. And please, don’t hesitate to contact me if you have any […]

  10. Hmmmm. Just a question regarding your comment about using covers here as “Fair Use.” By your own description, “Copyright infringement is a crime if the defendant acted willfully and either (1) for commercial advantage or private financial gain…” I would think since this is a blog by a cover artist intending to develop customers for a cover business, that this site is not “commentary,” but an attempt at commercial advantage and private financial gain. Fair Use would not seem to me to apply to your use of copyrighted material here. Or at least it’s borderline enough that someone could make an issue out of it if they wanted to.

    • Good question. However, by that logic, ALL newspapers and magazines would be subject to this limitation, since most publications serve the purpose of making money for their owners and shareholders. The media in which the image appears does not need to be for commentary alone, only the image in question. How else would for profit newspapers manage book reviews, film reviews etc? Yes, someone could make an issue out of it, but they would likely lose in court. Having said that, I have been in contact with the designer of one of these covers and she’s fine with it, amused even. As for the other, I’ll take my chances 🙂

  11. […] Book Cover Image Copyright […]

  12. How about derivative work? Lets say you take an image of a painting, and use 1/6th of the image and made it look very different, with very limited things that are still the same. If the cover makes the image and the cover look 95% different than the original image used, is it copyright infringement?

  13. […] Images used for promotional purposes have the same restrictions as book cover images. Recently I saw a book teaser that used a photograph of actor Alexander Skarsgard. I see MANY teasers made with random porny images taken from Tumblr. Just…no. People think they won’t get caught, but they will. If you’re not sure about what constitutes a licensed image, read this. […]

  14. […] they surround. I don’t want to rehash the issue here about copyright and book covers. Mod at Cover Your Dreams and Tasha B. at Book Bloggers International wrote about the issue in detail. Copyrightlaws.com […]

  15. Mason Engel says:

    Hi, there! Great stuff, thanks for sharing.

    Quick question: would it be all right for me to use a cover design very similar to another cover? I really like the 1984 cover that’s white and has the eye on it, so I would do something similar: white background, eye on the side, but with half of the eye red instead of blue and some other changes, including size and vibrancy of colors. Do you think I would be legally safe in creating this?

    Thanks!
    Mason

  16. Robin says:

    Absolutely loved your “rant.” After years of exhaustively reiterating similar explanations about how to incorporate copyrighted images without paying for them, I finally gave up and reduced my answer to “don’t.” You’ve clearly got more patience than I do. Thanks for the post.

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