Book Covers And Copyrights

A writer this week asked about using preexisting book covers to create a new cover for a book she was publishing. Book cover copyrights are a topic I’m questioned about often.  Who owns the book cover art — the artist, the publisher, the author? Can I use a book cover if I’m reviewing a book for my website, blog, or library catalog? If I combine book covers from different sources, is that legal?

As with anything related to the law, the topic of cover art and copyright ownership is multi-faceted. But don’t despair. I’ll break it down for you.

As a quick reminder about copyright law, when cover art for a book is created, the work is automatically copyright protected. The copyright owner has the exclusive right to reproduce the book cover, prepare new works based on the cover (i.e. make derivatives), distribute copies to the public, display the cover in public, and transfer any or all of these rights to third parties.

Who owns the copyright for the cover of a self-published book?

Typically, cover art for a self-published book is created either by an independent artist, a book cover service, or the author. Most writers tend to think that because an author paid someone to create a book cover the author owns the rights to use it. Under U.S. Copyright law, this is not the case. The independent artist who created the book cover owns the copyright. What you purchased was the book cover itself (much like buying a painting) and not the copyright to the cover. This is why your agreement with the cover artists should address who owns the copyright.

In order for you to sell your book with the book cover, whether in electronic or hard copy formats, you would need either a license to use the book cover or a transfer of full rights in the copyright of the book cover. The same would apply if a book cover service creates the cover art. The service owns the copyright. The author would need to secure a copyright license to use the book cover. If the author creates the cover art herself, she owns the copyright. There is no need for a license.

The copyright license dictates how the author can use the cover art. Authors, therefore, should understand the limitations in the contract. Typically, the license to use the cover art will be found in the Grant of Rights section of your contract. Read it carefully.

Let me say that again. READ IT CAREFULLY. Sorry, was I shouting?

You must determine if the license fits your needs, which requires that you understand the terms and the limitations. For example, does the license transfer the copyright in the book cover completely? Does the license limit your use to publications only? Is there a limitation on how many physical objects can be printed with the cover art (books, marketing swag, advertisements)? As always, if you have legal questions with a contract, consult a qualified publishing law attorney.

A word or three about the rights to the underlying source material. Often the cover artist will use third-party source materials when creating the book cover, like stock photos or design elements, which are copyright protected too. The person who creates the cover art should secure a license to use the underlying work. Make sure you know what rights the artist retained in the underlying source material so there is no limitation in your use of the book cover.

If the cover artist hasn’t created the art himself, ask the cover artist to list the underlying source material used to create the cover and whether a license was secured. You can even ask for that list to be included in your contract. For example, if a photo of a model is used, was a release signed? Remember, the artist cannot license or transfer rights in the underlying source material if she has not secured them first.

Who owns the copyright for the cover of a traditionally published book?

Whether a book is published through a large or small press, typically the publisher owns the copyright. The cover art tends to be designed by in-house artists in the art department. Cover art created by in-house artists is considered part of the employee’s scope of employment. Accordingly, the cover art is considered a “work made for hire” and the copyright is owned by the publisher (see my previous blog post on Work Made for Hire Contracts for more information). Unless your contract with the publisher states otherwise, you do not own the copyright in the book cover.

Sometimes, however, an independent artist outside the publishing house creates the cover art, especially with small publishers or when someone more notable or with different skills is needed. Under these circumstances, the contract will dictate who owns the copyright. Usually, the artist owns the copyright, and the publisher has secured a license to use it. Ask your publisher before your book is published.

If a book contract is terminated, the publisher’s copyright license to your book also terminates. Copyright ownership in the book remains with the author. But, this does not include the copyright to the cover.  The cover art copyright will remain with the publisher or artist. This is one reason you see new covers when traditionally published authors switch houses or publish the book again via self-publishing channels.

Is it legal to use someone else’s book cover image?

One common use of book cover images (besides as an actual book cover) is by writers and bloggers reviewing a book. Another is by librarians listing a book in a catalog. Under these circumstances, it makes sense to use the image because the book cover enhances the review or commentary about the book.

Technically, publishing the book cover on your blog or using it in a library catalog is a reproduction of the copyright-protected work. If permission or a license has not been secured, then you have violated the copyright.

I can hear you whining about this already. Stop it. I said technically. In most cases, the risk of being sued for copyright infringement for using the book cover under these circumstances is low. Book covers promote the sale of a book and generate discussion. Publishers and authors love when you use their book covers (provided you are not using the cover in a disparaging way). Using book covers with reviews or a catalog is free and easy marketing for the author and/or publisher, especially with reviews. Whether negative or positive, a review is still visibility. Do you think Goodreads has permission for all those thumbnails? Of course not.

An argument could be made that using a book cover for reviews and/or catalogs is considered fair use. Fair use allows the use of images in certain circumstances without permission or a license from the copyright holder. Fair use is determined on a case-by-case basis, and only a defense (i.e. you use it once you have been sued). In general, one might argue using a book cover in a review is considered commentary or criticism and thus fair use. If you want more information on the fair use factors when using copyright-protected images see my earlier post here.  Or check out these articles by Jane Friedman or Stanford University.

If you still want to be ultra-conservative, then seek permission to use the book cover or secure a license. But from this writer’s perspective (who is an intellectual property lawyer), seeking permission to use a book cover is a huge waste of time and unnecessary if, and I mean IF, you’re using it merely to review a book. That said, if you are modifying the book cover, then read on.

Is it legal to modify someone else’s book cover image?

When you modify a preexisting book cover image to create something new (like using the cover to make your own book cover art, or using multiple covers to create a new cover, or using the cover to create your own artwork, or even disparaging the preexisting book cover to create something pornographic from the original cover), then you might find yourself the defendant of an infringement suit unless you secured permission or a license from the copyright owner first.

Why do you need permission or a license?  The answer lies with derivative rights.

When you change someone else’s cover, you have a copyright that you own in the newly created work. Problem solved, right?  Not so fast. Under U.S. Copyright law, only the original copyright owner can make or license someone to create derivative works of their original copyright-protected material. Just ask Shepard Fairey about his copyright infringement suit over this Obama themed artwork.

Derivative rights are one of the many rights that a copyright owner enjoys, i.e. the control over the preparation of derivatives (see my earlier posts on derivative works for more information). If you are building on the work of others, you must obtain a license or permission (unless the original is in the public domain — which you can read more about here).  

A book cover has its own copyright protection, which is separate and in addition to the copyright protection for the book itself. Before you publish, make sure you understand who owns the copyright to the book cover and whether the appropriate rights to use it have been secured. If you decide to use someone else’s book cover for your blog or library catalog, remember there is some risk of being sued for copyright infringement, but the risk is relatively low.  That risk escalates when you use someone’s underlying artwork or book cover to create your own derivative work unless you secure permission or a license first.

 

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