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:
I 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.
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.
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.