*Yes, I’m better, and I’m hoping today is my last “sick day” but I did a hard post for Mad Genius Club (Someone volunteered for a first page critique. It’s a difficult thing to do when you’re still somewhat under the weather. Actually it’s difficult at all times, but very difficult when under the weather) and I’m out of energy. Fortunately my lawyer, Robin Roberts — yes, the person who got me back my copyrights (yay) though I’m apparently not allowed to tell him how wonderful it is, because he blushes and stuff — the same man who keeps telling me to be VERY careful about what art I use for covers, the man who is the soul of law and the heart of probity, decided to send me a short guest post on
covering it like it’s hot what art you can steal for covers, and stuff. (I’ll have to link this over at PJM too, next time I talk about covers. Meanwhile, it might keep some of you reprobates from stealing the nails off the walls of this here joint. Or something.*
What Art Can You Stea… err Borrow — a Guest Post By Robin Roberts
Sarah has done some posts here and on PJMedia discussing her techniques for putting together cover art. She’s listed a couple of ways for one to find images to use as elements in such cover art and I want to briefly discuss what you can and can’t use.
First of all, what can’t you use?
Anything that is still in copyright and you don’t have permission to use. Period. “Fair Use” will simply not apply to cover art you assemble for your self-published book. And even if there was an argument that it could apply, one does not rely on the possibility of a “Fair Use” defense as a rational business plan.
There are also some “rules of thumb” that we often hear about if you “change” XY percent of an image, you won’t be infringing. This is unfortunately not true. The legal test for infringement is substantial similarity which is not expressed in a number. As an example, the iconic poster of Barack Obama from 2008 was created by posterizing a photograph that was copyrighted by the Associated Press. Posterization “changes” every pixel but the poster was still infringing of the AP photograph.
Creative Commons licenses are fraught with peril because basically there is no such thing as “a” Creative Commons license, there are many of them. Because the Creative Commons licenses have many options, some of which do not permit you to use them as elements in cover art (such as “no commercial use”, “no derivatives” etc.), you must be very certain of your ability to correctly read a Creative Commons license before using such images.
Don’t use anything you find on a stock photo or stock image website without having paid for a license. Stock photo and stock image companies search the Internet looking for unlicensed uses of their images and send dunning letters when they find them. Letters that demand large sums of money. I once worked in the General Counsel’s office of a large corporation and you would not believe how often someone in the company would inappropriately swipe an image off a stock photo website that we had not obtained a license from, and how much money that cost that corporation annually.
If you do purchase a license from a source of stock photos or images, be sure that you pay for a license that will allow you the full use of the image you intend and both website (for advertising your work) and multiple copies of ebooks far in excess of your intended sales.
What can you use?
If something has been explicitly dedicated to the public domain by its author, then you can use it.
In the United States, the term of copyright has been calculated in several different ways depending on how far back you go. There are still works in copyright that originally were subject to a 28 year plus 28 year renewal scheme (which was later extended by statute) unlike today’s authors’ life plus 70 years scheme. Further, until the Copyright Act of 1976 became effective, it was possible for copyrights to lapse for failure to observe some formality such as actually filing for the renewal term. There is a possibly apocryphal rumor in the intellectual property community that a major film studio fired all of its paralegal staff in the ‘50’s and allowed its film copyright renewals to lapse for a period – causing some films to become public domain. It is no longer possible for copyrights to lapse by accident.
The bright line in United States copyright law is that anything published in 1922 or before is in the public domain. From 1923 until approximately 1936, it was possible for something that had not been renewed to fall into the public domain but verifying the actual copyright status of a particular work is a non-trivial exercise involving research of the Copyright Office records.
Internationally, much of the world has used at least the “author’s life plus 50 years” term based upon the Berne Convention (photographic works minimum is 25 years from creation under Berne). But the European Union now provides for a term author’s life plus 70 years for most works. This results in odd situations where a work may be out of copyright outside the United States but still in copyright inside the US or vice versa. This is how the embarrassing situation came about where Amazon listed an ebook of George Orwell that was not actually licensed for use in the US some years back.
So if you are going to offer your work in the US, then make sure your elements are either properly licensed or from a work published prior to 1923. If you are going to offer your work outside the US, then you must do both calculations to be confident that the image you are using is in the public domain.