The issue of book covers and copyrights came up recently due to some memes that I created for other authors.
In my book cover presentations, I make it very clear to people that if you don’t have express permission to use an image, don’t. Better safe than sorry for DIY projects.
Of course, there are exceptions to this rule, but that gets a might complicated since copyright law is so gray in nature. What is fair use in one court room may be copyright infringement in another.
There are just so many variables that rarely is it a case of black and white.
However, you’d never know that asking the “legal scholars” of the internet though. The opinions of the online “legal scholars” ranges from a definitive yes or no.
It’s usually better to be safe than sorry. However, being safe or right is not enough protection against a lawsuit. Anyone can sue you for anything at any time and it’s up to you to defend yourself. That is how our court system works. Yup, it suck…I know.
Years ago, I found myself on the wrong end of sue happy creep, over transposed numbers. This dude went on to sue my attorney as well for sending him a letter explaining the situation. The case didn’t involve copyrighted material, but it does illustrate my point that you don’t have to do anything illegal or wrong to get sued.
Every time there is a discussion of copyright infringement, I get the distinct impression that many confuse it with Trademark infringement. They are not the same. Trademark infringement is adamantly enforced and controlled because unlike copyright, rights to a trademark can be lost. Fair use doctrine for trademarks is more stringent than with copyrights.
Best to avoid Trademarks like the plague, because it will more likely than not, end badly.
Most of my prior research into copyright law, has dealt more with images used in the making of the book cover. I had only done minimal research regarding completed covers.
I came across an interesting point that I think applies to the memes.
It can be illustrated with a simple question.
Raise your hand if you’ve ever gone to Amazon or Barnes & Noble to purchase a BOOK COVER you’ve seen floating around the internet.
[chirp, chirp, chirp]
Now how many have gone to Amazon or Barnes & Noble to buy the book associated with the cover image?
[hands shoot up]
Exactly. Not only is the completed cover not available as a separate purchase, it’s an incidental part of the overall work. No one is buying the book cover, they are buying the story.
For a bad analogy – The book cover is like a pretty dress, makeup and jewelry on a prostitute. No one’s paying a prostitute for the dress.
Unless one is using the cover to claim that it’s their book or copying it to sell their own book, using it to identify a book as in the case of doing a review or commentary. Or as Lousy Book Cover does, criticize the work, use of the cover most likely falls under fair use. But as with all things in law, there are exceptions.
Using the cover is little different than using the title & name from the cover of the book, because what is being referenced is not the cover, but the work inside.
A rather big case against Amazon, out of the 11th Circuit, said that disseminating the image in an editorial fashion does not violate copyright laws. In this case, the online sharing on images was no different than if someone went to a physical bookstore and looked at books on the shelves.
Further, book covers, by their very nature are more advertising tool than product. Which could account for the reason that I ran across very few cases where copyright infringement was used as a basis for a lawsuit when it came to book covers. The suits usually involved the images used as part of the cover, not the use of the completed cover. The outcomes of the various cases continues to back up my belief that the courts are insane.
Regardless, whether you are in the right or in the wrong, it is up to the copyright holder to make the argument that you’re violating their copyright. No one, but they can sue you for a breach. So if John Doe “internet scholar” tells you to take it down, you are fully within your right to tell him to go pound sand.
Many times a Cease & Desist letter from the copyright holder will be sent to anyone alleged to be violating the copyright, mainly because many people just don’t know they are doing anything wrong and it’s so much cheaper and time effective than getting a lawyer involved. Most people will take the image down, no questions asked. Problem solved.
If you believe you’re in the right and have tons of money just waiting around to be spent, feel free to challenge the copyright holder. Whether you win or lose, the attorneys will come out the winners.