What Art Can You Stea… err Borrow — a Guest Post By Robin Roberts

*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.

101 thoughts on “What Art Can You Stea… err Borrow — a Guest Post By Robin Roberts

  1. You mention the Obama poster… I once thought of starting a business selling counterfeit Shepard Fairy merchandise. I mean, really, what’s he going to do? Sue for Copyright infringement? *grin*

  2. Okay – quick question…

    Suppose I use something for a background – like a GIF of a 1940’s radio schematic that someone scanned in. Where does that fall on the scale of ‘Art’ vs. ‘public domain info’?

    1. Could you make up a radio schematic and use that, instead?

      From what I remember of schematics in the Navy, drawing one by hand would be nicer….

      1. I might end up doing that – but there’s just something … pleasing… about the old heterodyne radio circuit schematics.


        I mean, look at the 6A7 in THAT baby… you don’t see heptodes like THAT any more!

        Or… (for the adults… don’t let the kids see, they wouldn’t understand and it might warp them for life…)


        Take a section, invert the colors, make it look like an old cyanotype, and then fade it to about 20% opacity and use it as a layer…

        It’s amazing what they used to accomplish with the electronic equivalent of stone knives and bearskins, compared to now. A friend of mine told me around 2000 that a tube-based equivalent to a cell phone would take up the World Trade Center towers – and he didn’t even want to think about the power and cooling requirements.

        Well, I’ll rough out some things in TinyCad, I guess. 😦 I really think there’s a beauty to the old works, though.

        1. Use them all as a combined guide, “copy” sections (by eye, natch), shift things around, delete a component here, change one there, add one somewhere else. YOU would know that it doesn’t work, but the vast majority of people wouldn’t, and electronics designs are generic enough that no one is going to recognize small sections.

          1. Switch the caps with the…spacing, whatever those loopy things that aren’t labeled are… change the diode’s surroundings based on what looks best, have the resistors spike in the opposite way….

            ….

            Or email them and ask if you can use X, Y and Z schematics as part of a science fiction book, if you provide citation.

      2. Whoops – I think I put too many links in my reply…

        But they were just schematics!

        (Yeah, sure – you let kids see old radio schematics, and next thing you know they’ll be wanting to make crystal radios. And then they’ll bug you for a tube amplifier… and when you don’t get it they’ll start prowling around old surplus electronics outlets. Someone’ll probably tell them about transistors and integrated circuits, which will suck up their lunch and Christmas money buying stuff from Radio Shack and solder fumes will fill your house. (Mmmm… hot rosin…) From there if you’re LUCKY they’ll fall into VLSI, multi-layer circuit boards… and then they’ll get into the hard stuff like surface mounted programmable circuitry and microprocessor layout… at which point they’re essentially lost to the world. If you’re not lucky, they’ll get into programming.)

          1. I tell people all the time that if I ran Radio Shack, I’d gut it and return it to it’s roots in components and then modernize it. 3d printers, desktop CNC machines, arduinos and raspberry pis and last but not least, rentable workspace and tools. And then (provided minimum wage hasn’t been raised so far as to make it impossible) I’d hire retired EEs and other science junkies who want something to do for a hobby and sell 1 hour sessions with them a la Apple’s Pro Care ($99/year, 1 hour /week, teaching or guided work time). Heck, recognizing electronic component margins aren’t going to be nearly as good as Apple’s, I’ll bump that to $99 / 6 months. Even at that price, it’s still a bargain. Oh, and then I’d market the hell out of myself to home schoolers. Because seriously, who wouldn’t pay (assuming they were into it of course) $99 to supplement their kid’s homeschool education with a hour a week of actual hands on build time with an old EE, a soldering gun, a bag full of components and a 3d printer. You can’t even by piano lessons from old Widow Tillerman for that price.

            1. Now if you could just get a backer, that might just be a good business plan. You’d probably have to start in a large suburban area outside a large city, but I think it might work.

  3. What about elements used to construct cover art? I mean, say I develop a cover art for a book that uses several items I’ve clipped and compiled, but no one part is dominant?

    1. This I do know. You still have to have the rights to all of them.
      If you need art without attribution or strings attached, try morguefile.com I just made a cover with elements from there. I still attribute, to prove I had the rights.

  4. What about artwork in museum collections? If I use an image by, say, Van Gogh, he’s out of copyright, but can the museum that owns the picture limit photos and reproductions?

    1. IANAL, but going by the photo attributions I see in magazines and art books, I’d say yes, some museums have pretty tight control over their works of art. For example, the art museum (Alte Meister) in Dresden, Germany issued a whole bunch of legal notices to people for using bits of Raphael’s “Sistine Madonna” without permission or rights payment. (The two little angels at the bottom were trendy for a while.) I’ve seen some that ask for attribution, and others that have fees depending on usage (commercial vs. educational).

    2. No. Their copyright is to the photo (if there’s an obvious angle) or the frame. This is one of the reasons I buy Dover’s books of paintings (that and the CD which makes it easier.) Because you CAN use those with no strings attached. Other places like Art Renewal have those too.

      1. Wikipedia commons has a lot of art that’s public domain. For photos and the like, it’s less reliable — read the text with care.

      2. Thanks, I’ve started buying Dover for images which are advertized to be copyright free. I was going to ask and now won’t have to.

        1. I love Dover and their reprints and own, well, a LOT of them. However, check the copyright page and make sure that the book is part of their “copyright free” series — they do sell books that are copyrighted.

      3. ” Their copyright is to the photo (if there’s an obvious angle)”

        This is why it is much easier to have right to a photo of a sculpture than a painting.

      1. Here’s the issue. An original photograph is copyrightable. However a “copy” of a public domain work is not copyrightable. Where is the boundary between an “original” photograph and a copy of a work? Arguably there would have to be some composition and lighting choices to elevate a mere photographic copy of a work into an original, albeit derivative, copyrightable work (and due to an odd quirk of copyright opinions, the Seventh Circuit would have a higher standard of originality for this).

        Oddly, the case law on this is not well developed and some stock image agencies and museums are more aggressive than others in litigating the issue and attempting to claim rights in photographic copies of public domain works in their possession than the law would allow. I’ve not spent any time researching how such photographs would be treated outside of the US.

      2. Also note that one can copyright a book that is a collection of public domain works. However, all that one would be copyrighting is the entire collection/book ie., the assembly – one would not thereby gain rights to the included public domain works.

  5. Ah, the delights of finding artwork.

    The real fun is finding appropriate artwork. I am tempted to package up short stories into a collection and sell them together in order to be able to put a vague “this is fantasy” cover on it. . . .

    1. What’s REALLY annoying is when your story was inspired by a piece of artwork that’s not public domain.

      sigh

  6. What is your liability when you purchase a license to use an image, and it turns out the party you licensed from did not hold the rights?
    Since the chances are that the lawyers will think the writer has more money from the use of the image than the scab that sold it illegally, what is your defense and will it work?

  7. My perspective is a little different, in that my writing is noncommercial educational history stuff (for which, alas, I get no money; it’s a hobby.) It’s easier for me to claim fair use, at least in theory.

    In practice, I try to avoid it, because it’s so ill-defined. I claim fair use only as a fallback: The image looks like something that is probably not copyrighted, either because it’s very old or because it looks like it was made by a federal employee in the course of his official duties. But I’m not sure, so I put a “Fair use may apply” qualifier on the credit line Just In Case. Really just a charm to keep away lawyers, and probably no more effective than any other charm.

    Wikimedia Commons: same thing. I use an image when the claim that it’s in the public domain is plausible, but the credit line links Wikimedia Commons so I can at least claim good faith if there actually is a copyright holder and he decides to go thermonuclear. (“Well, gee, Wikimedia told me it was public domain …”I don’t recommend this for anything commercial.

    I avoid Wikimedia Commons stuff that has a creative commons license of any kind. I’m too worried about the legal Trojan horses that may be lurking in the CC license.

    The vast majority of images at my site are, in fact, images made by a federal employee in the course of his official duties. By statute, those are in the public domain. That’s a wonderful huge loophole that a history site can exploit, but, really, anyone can exploit it.

    So, Jerry, if you just want schematics and don’t care particulary what they are schematics of, I suggest bopping on over to ibiblio.org/hyperwar and browsing through some of the old Army radar manuals. They’re all comfortably and safely in the public domain.

    Some NASA photographs are also public domain, but you need to be rather careful here. If the images were partially produced by university researchers, there may still be copyright involved, since university researchers are not federal employees in the course of their official duties. (I consider that an outrageous legal fiction, based on my brief time in academia, but regardless.) Hubble images likewise; be careful. STS is just enough detached from the civil service that copyright is possible.

    When in doubt, I ask. There are a very small number of images at my site that identify a copyright and declare that I am using them with permission. It is perhaps not surprising how often I’ll find a juicy image online, email the site Webmaster for information on the copyright holder so I can get permission to use it, and get back a response along the lines of “Um … well … er … ” indicating they weren’t too scrupulous about the intellectual property rights. Most are museums whom I suspect are relying far too much on fair use.

    I have a small number of my own photographs and a much larger number of self-generated maps at the site. I really don’t give a scatological metaphor if anyone swipes my photographs, so long as they don’t have the cheek to try to assert their own copyright over them. When I photograph a box of my late father’s leftover lead bullets to illustrate an article on the military uses of lead, the quality of the photograph is poor enough that why bother? The digital maps I’m a bit more proprietary about; the raw data is NASA public domain data, but I put enough work into my map generation software (yes, I wrote my own; long story) that I am both entitled and inclined to assert a copyright. I’ve never seen one of these swiped for anyone else’s site, which is either a very good commentary on respect for intellectual property or a very poor commentary on the quality of the maps!

    And now, a rant, which may not endear me to folks whose livelihood depends at least in part on their intellectual property: Present copyright law is ridiculous. The fact that most press and other private photographs of historical events at the time of the Second World War are still under copyright is outrageous. I think the whole reason for the slippery, weasely exception for fair use is because everyone knows that but no one wants to make any changes to the law. You’d have too many artists testifying before Congress on how outrageous it was to think of reducing term of copyright, and Congressmen are well aware than artists are more charismatic and sympathetic than Congressmen. (Not as low a bar as you might instinctively think but that’s a topic for another post.)

    1. One would think that federally-produced artwork should be in the public domain, but there seems to be some question regarding the hundreds of paintings done as part of the Index of American Design (paid for as part of the WPA in the 1930’s). The National Gallery of Art now has the pictures.

      Most of what is on the Library of Congress’ picture archive website says that it is copyright free, with the caveat that checking for copyright status is the user’s responsibility.

      1. Work produced by Federal employees in the course of their duties is public domain by statute (as Mr. Budge ably described above). Contractors’ work is copywritable and the Federal govt can be the assignee of such copyright. By the way, states are free to copyright their work.

        1. I didn’t realize that the states can copyright their work . . . . The Mayor of New Orleans claimed copyright to The WPA Guide to New Orleans (1938). But things are different in Louisiana, I guess.

          I use the University of Pennsylvania’s Catalog of Copyright Entries to search for copyright status of books (plus the US Copyright office).

          http://onlinebooks.library.upenn.edu/cce/

    2. Here’s a little bit of history of Japanese copyright law that may be interesting. Let me emphasize, since I haven’t yet, that I Am Not A Lawyer. I’m a Ph.D. computational physicist who dabbles in history and trolls interesting web sites on the side. I bring this up not as legal advice but as a possibly amusing tale.

      Various U.S. agencies, by which I mostly mean the Army, Navy, and Marines, swiped a whole lot of Japanese photographs and artwork during the period from, oh, about late 1941 to mid-1945. Much of this got published by the U.S. government, or put in U.S. government archives, or released to the private press with the U.S. government’s blessing to violate the living copyright out of it. Spoils of war, I guess.

      This led to some delicate negotiations with Japan during the peace settlement process that more or less upheld the U.S. position, which essentially boiled down to “we plundered it fair and square, you lost, and we aren’t giving it back.” The result is a huge loophole in Japanese copyright law whose effect is that an awful lot of historical imagery of Japanese origin from before 1956 is not under copyright. Naturally, I heavily exploit this at my site as well. (Much of it comes from Wikimedia Commons, ditto.)

        1. Certainly applies only to Japanese images. Wikimedia seems to think it applies to the relevant Japanese images internationally, but Wikimedia ain’t a lawyer, either.

          Though they probably retain some very good lawyers.

          Who they don’t always seem to be listening to.

          But then the whole Wiki enterprise is founded on a sour attitude towards intellectual property rights generally.

        1. An overpaid government drone.

          (rim shot)

          Okay, there are two ways to classify physicists. One is by area: atomic physicist, quantum physicist, nuclear physicist, solid state physicist, astrophyscist (c’est moi), and so on. This is the branch of physics that interests said physicist.

          The other way is by method. This was once a fairly clear binary split: Theoretical versus experimental. You could be a theoretical particle physicist (Higgs) or an experimental particle physicist (the entire scientific staff of LHC). Being a theoretical physicist is more sexy (Hawkings; never understood that, actually) but being an experimental physicist has better employment prospects (the entire scientific staff of LHC).

          Then computers got important. People began runnning large numerical simulations on large computers to test the consequences of physical laws in situations where analytic solutions could not even begin to be found. Are these theoretical calculations, or are they numerical experiments? Well, now we have three methodological classifications of physicsts: theoretical, experimental, and computational. Computational physics aren’t as sexy even as experimental physicists, but we have even better employment prospects (because computer simulations are perceived to be cheaper than experiments, and because Global Climate Change.)

          I don’t actually do nearly as much astrophysics as I would like any more. I mostly do transport theory, which has roots in astrophysics but is used for such diverse things as controlled or uncontrolled fusion, nuclear reactor design, and medical imaging. Well, and if you want to get the Pixar movie just right, you might use some simple transport theory.

          And, at the moment, I’m killing time waiting for the latest run of a simulation code through a test suite, which it has failed the last three days running. Third time lucky?

        2. I think I will add that theoretical==sexy, experimental==not sexy, computational==Bill Gates is a generalization, not a hard and fast rule.

          One of the finest observational astronomers I ever knew (observational==experimental==not sexy), a man who arguably ought to have shared a third of one of the recent Nobel Prizes, was widely known among the graduate students at his last postdoctoral institution as Sexy Alexei. One could be forgiven for assuming such a name was ironic, but in this case I think it was more envious.

    3. Kent G. Budge wrote: “STS is just enough detached from the civil service that copyright is possible.”

      If you are thinking of the Space Telescope Science Institute (usually referenced as “STScI”) in NASA imagery is public domain according to their website: http://www.stsci.edu/institute/Copyright

      If there is a scientist listed by name, other than NASA or the STScI, you may have to check with them. BTW–the ESA (European Space Agency) is another Hubble Partner. Their image license is CC Attribution 3.0 and only requires a credit: https://www.spacetelescope.org/copyright/

      Kent G. Budge wrote: “Congressmen are well aware than artists are more charismatic and sympathetic than Congressmen. (Not as low a bar as you might instinctively think but that’s a topic for another post.)”

      We need Former Elected Official and/or Bureaucrat registries. Just to protect the children, of course.

  8. In the US at least, images that are produced by government agencies are in the public domain, because they were produced with public funds. So you can use a publicly available DoD image of a carrier flight deck for a technothriller, or a NASA lunar or Martian landscape for a hard sf novel.

    One caveat: if there are recognizable human figures in an image, the people being portrayed (or their heirs) may have a publicity right to them. Frex, I’d love to use the famous picture of Ed White on his spacewalk as cover art, but I have reason to expect that his son (who takes care of all matters relating to him) will be Difficult to deal with.

    1. Not entirely true as written with respect to government works. See above.

      I may later address right of commercial use of one’s image/model releases if Sarah wishes.

      1. I collect pre-1920’s images, and at one point thought about starting to sell high-resolution copies for commercial/personal use. But I probably prefer to spend my time writing.

        I know someone who did get several letters from one of the major photo license agencies concerning the use of an image that was long out of copyright. I don’t know why they waste their time on such — but I guess they find it worthwhile.

        1. Because it’s cheaper than checking carefully for whether it’s actually an infringement. And they never know if they can’t frighten someone into paying, out or not.

      2. Please do. I’m writing a lot of hard sf and rocketpunk, and I’ll have a much wider variety of NASA photos available if I don’t have to automatically eliminate all that have individually identifiable astronauts in them. After reading about some legal battles over the commercial use of NASA photos with recognizable astronauts (Buzz Aldrin’s recent memoir has a fair amount of information on them), I’ve been a bit skittish about it. This is a matter where you really don’t want to have to beg forgiveness if you should’ve asked permission, and Eddy has a Reputation for being hyper-protective of his father’s memory.

  9. Painting a copy of something is safe, isn’t it? There aren’t that many painters I could copy well enough that it might be mistaken for the original, but there are a few. I’m under the impression that as long as I don’t try to pass a copy I painted myself as the original I could use it pretty freely even if it does look like the original? And something which is obviously based on something by somebody else but is also obviously a different painting is at least fully mine, right?

        1. If over half of the potential jury pool are likely to see a clear resemblance when they look at the two works, you’re in trouble.

          There’s an exception for satire and parody, which has of course been heavily exploited by all writers of satire and parody.

          1. Notice that you have to parodying that work. The test case was when someone parodied another work in the style of Dr. Seuss. Since it wasn’t intended to parody Seuss — trouble ensued.

          1. Okay. How about old classics, then? Let’s say I paint Mona Lisa, or as close as I can get? Or something newer, maybe less than a hundred years ago? There are some Finnish classic paintings which might make pretty good fantasy covers, and I think it would be safe by our laws, but if USA laws differ and it’s on a book which is published through Amazon KDP?

            1. Mona Lisa is long out of copyright. I can’t imagine you’d be in any trouble if you did your own version.

              Mr. Roberts already cited one bright line: Anything produced before 1922 is safe in the U.S. Since U.S. copyright law is about the most unreasonable in the world, with one exception to be shortly described, if it’s safe here, it’s probably safe anywhere.

              So you are safe duplicating any old Finnish classic published before 1922.

              The one area where U.S. law is not necessarily as strict as foreign law is the area of so-called “moral rights” to a work. I can’t claim I understand this very well at all. Oh, I understand what the sentiment is behind it, but its actual formulation in law is bewildering to me. I’ll leave it for someone else to explain. But I think you’re still safe if the work is pre-1922 and you’re publishing from the U.S.

            2. If you ensure that the artist has been deceased for more than 50 years and that the painting was created before 1923, you’ve got very high certainty of non infringement.

              1. Aaaaannnnd now I have a story idea about a scientist who develops a time machine in order to travel back to kill an artist (and heirs and assigns) in order to avoid a nasty copyright infringement suit.

                No, I will not write it. Writing is hard, tedious boring work — I would rather do a bank reconciliation. If any of you lot fancy it, all I ask is suitable tuckerization: I am told that I look lovely in a red shirt*.

                *Not the precise phrasing employed …

            3. You may even be able to fight off a copyright infringement suit by pointing out you were really copying Mona Lisa, not the later work!

              Note the “may” in that sentence. . . but even media conglomerates have been dissuaded from filing such suits by having someone point out some prior art.

  10. For a great example of the judicious use of old artwork, it’s fun to peruse James Lileks’ site.

    Actually, it’s fun to peruse James Lileks’ site, period. The man is a comic genius.

    But if you examine his stuff carefully, you’ll find he’s been fairly careful to stick with stuff which, for whatever reason, has had its copyright lapse. Noir films from long enough ago that they went into the public domain when the studio did’t bother to renew the copyright, for example. Matchbook covers and advertisements that probably never bothered to assert a copyright, back when you actually had to assert a copyright. And by the very nature of his site, if he ever gets it wrong, he can still make a strong case for fair use. The point is that he doesn’t seem to be relying on that. Since he’s made a fair amount of money off of hilarious commentary on very strange images from Way Back, I’m guessing he has a very competent copyright attorney advising him.

    Go. Visit. Even if you have no particular concerns about copyright law. The stuff is hilarious. No, I’m not his long-lost brother; just a big fan for years.

    1. Just ran across a particularly good example at Lileks’ site, here:

      Note the comment about this being pre-1923. Thrown in offhandedly for comic effect, but: He really does scrutinize the fine print to be sure he’s not treading on anyone’s copyright.

      Which raises the observation that you can duplicate the living scatological metaphor out of the famous portraits of old Presidents — even if it’s not strictly parody, which most duplications are. And assuming it’s somehow going to help you with a science fiction or fantasy book cover. Might be useful for historical fiction, though.

      1. Perhaps if somebody wrote a novel (or series) on the premise that somebody was using preserved DNA of past presidents to clone them into the “present”? Could explore issues of nature/nurture and, especially if clones realize their origins and make a genuine effort to be true to their “character” a commentary on how politics has (and has not) changed over time?

        I wonder what a recreated Andrew Jackson would make of our current president? What would a debate among Washington, Jefferson, Lincoln and Reagan be like?

        Put Stuart’s Washington on the cover in modern three-piece suit, looking at JFK …

          1. I am imagining a time traveling Obama, going back to act as adviser to James Buchanan, preserving Obama from being known as the single worst president…

              1. Most of what is billed as satire is wish-fulfillment, because it would never even trouble the people allegedly satirized; its real audience is the people who want to feel superior to the satirized.

    2. I just remembered: Lileks once reviewed a film which, it turned out, was still under copyright. Put up some images and clips. Was a little shocked when he got a take-down notice. Snarked (justly, in my opinion) that the studio was an idiot to squelch free, and mostly favorable, publicity.

      Can’t remember if it was Disney. Don’t think so.

      He’s been much more careful since then.

  11. I work for a photography studio whose primary clients are high schools. This includes building or otherwise supplying backdrops for the photographs we take at dances*. About eight years ago, I prevented an unwitting copyright infringement before it happened, since I talked to the employee who was going to a backdrop design committee. She said the students wanted the Disneyland castle for their backdrop, and, well, anyone who knows Disney knows that wouldn’t fly. Not even a personal photograph. However, as I knew that the castle was based on Newschwanstein, I did a search, found a color photograph from the 1880s that was in the public domain, and we photoshopped some fireworks in the background (from pictures *I* had taken, no copyright issue there.) They loved it, everyone was happy, and nobody’s toes were stepped on.

    Always keep in mind, too, that there’s nothing to be lost in contacting an original content creator. They may not be willing for you to use their stuff, or their prices may be out of your range, but you never know, and it’s also possible you might end up hitting it off and have a go-to person for content creation as well.

    *To give an idea of how quickly the market has changed, when I started working there nine years ago, a typical prom would have up to 300 unique photographs, and we had a financial penalty clause if there were fewer than 50 paid photographs per camera. Now our dances have two backdrops in general and we’re lucky if we get 80 pictures (and when we got 50 paid photographs for one camera last fall, it was worthy of going out and getting burgers, it was so unusual.) We sell digital rights instead of freaking out that kids are illegally scanning their photos to post to Facebook. And there has been a concurrent rise in “photobooth” photos—which we don’t understand, but hey, it makes us the money we lost from the posed photos, we’ll roll with it.

    1. Wonderfully creative solution to avoiding being confronted by a thug mouse. (Am I the only one that remembers Bloom County character “Mortimer Mouse”?)

      1. I try not to remember any Bloom County from later than that. Wonderful strip in its early days. Unfortunately, had an early expiration date and got really stinky after that.

  12. How about audio recordings? I have some cassettes dating from the 1980’s of readings. Think an early version of an audio book, but of material which was never published in print form to the best of my knowledge. There are no dates or copyright notices on the cassettes. The company that sold these is long gone. There is no indication of who the voice was or who did the actual recordings

    Is it legal to put these recordings on a website for others to listen to? (Non-commercial use)

    1. Not enough information, so my tentative response would be “no”. Note that the ’80’s post date the major revisions to US Copyright law, eliminating the requirement of copyright notices for protection, including sound recordings of music to Federal copyright protection.

      If they are just readings of literary works, they would be protected as literary works. Copyright law requires that to be protected, a work must be fixed in a tangible medium but does not require that it be paper. So I can “copyright” a literary work, as an example, by reading it into a recording device. Likewise for any other copyrightable subject work like choreography, musical score and lyrics, etc.

      1. Can a teacher copyright one of his lectures? Feynman, Hawking.
        What is the difference between a copyright and a patent?

        1. A copyright protects an original work – literary, musical score and lyrics, sound recording, audiovisual work etc. It provides for several exclusive rights including the right to make copies, to make derivative works etc. It protects only the expression embodied in that original work. So I can copyright my film about a boy who grew up not knowing his parents, who was mentored by a wise old man into discovering his talents and true destiny (“Excaliber”, “Star Wars”, etc.) but I can’t stop someone else from creating another story that has its own original expression of that idea.

          A patent protects a novel* idea within certain specific scope of ideas. So a novel method to make something, a novel compound, a novel invention. It provides the inventor with the exclusive right to practice the invention described in the patent. So its much much broader than a copyright in that it provides the exclusive right to practice anything that is covered by the patent’s description. However, patents are much shorter in term, lasting only 20 years from filing currently.

          * novel as in “new”, not the literary form.

            1. It was intended to match international practice and to reduce what are called “submarine” patents. That’s where a patent has been filed and through various little procedural tricks, has been in review in the patent office for years and suddenly surfaces and is issued when the industry thinks that the covered invention is public domain.

              1. I’m sure there are other ways they could have reduced the “submarine” patent problem.

                I’m currently working on three different things: one of which will probably not be challenged, as there is nothing for it to threaten; one which is highly likely to be pointless (not a good enough solution to be worth building); but one which I expect to be a kick in the teeth to some industry with very well-paid political lobbying, and want to get some benefit from it some day, but am now afraid I won’t be able to.

    2. SFFAudio is a pretty good site for all things sf or mystery and audio, and also is pretty good at digging out unrenewed stuff. Talk to them about what you’ve got.

  13. I have a request for a topic for a future post. I’m being confronted with two different scenarios pretty often:

    (A) Local organizations (non-profits: DAR, churches, etc.) that want to publish an eBook or POD book, but have no idea how and want help with setting it up. Any advice on how to handle the practical aspects — financial, control of content, etc.? Does Amazon pay non-profits?

    (B) If someone agrees to be a co-writer/editor on a project in exchange for a portion of the proceeds, how should that be handled? Does Amazon split the proceeds, or do the individuals have to work that out?

    1. I can answer the second half of your question: Don’t. Unless you are willing to set up a business entity to handle the paperwork on that project in perpetuity – with all the attendant hassles – or find a publishing house willing to take it, don’t even start. I brought this up with another editor at the symposium I was at a couple of weeks ago, who has edited several anthologies. His advice was the same. For author-publishers, a collaborator who is legally separate (i.e. not a spouse) is a huge, horrific hassle. Pay your people up front or you’ll need a house, whether yours or someone else’s. Now if it’s your spouse (for example, the Maxwell novels by the awesome Peter Grant assisted by his marvelous wife Dorothy), then you’re golden.

  14. Sci-fi authors might have it slightly easier. My recommendation to authors needing images is to take photos of all sorts of things (reflections in water, on polished metal, or even a ‘knot’ of pipes say) on a smart phone or a small camera and download them to your computer. Once there, you can manipulate them in numerous ways (tablets for example have lots of low cost or even free programs to alter colours, apply strange filters and so on) and use them as the basis for a cover. However the pixel configuration on a computer screen is coarser than for print (think 72 as opposed to 300 pixels per inch) so the quality may be poor to the eye in print unless you can refine the image.

    All things considered, fantasy and sci-fi authors may have better options for covers than say romantic authors who need to show real people on their books and possibly good looking people at that. They are not as common as TV shows would have you believe!

    1. Dreamstime. Seriously. Finding pictures of couples kissing is not that hard. And there’s a reason most people cut off the heads in covers. They run about $15. the hardest are cozy mystery and fantasy covers. The diffuse photo says “techno thriller” actually. I recommend Filter Forge and photos from Dreamstime or Morguefile.

      1. I second Dreamstime – people, landscapes, fantasy stuff, at good to reasonable prices and you know you’re covered as far as rights and royalties go.

      2. My own problem is that I find fantasy covers with photos — unconvincing.

        Actually, I like all fiction to have paintings not photos on the cover — it is after all art inside, not reproductions of life. I’m just weird that way. though I’m not alone in disliking the photographic treatment of fantasy:

        “It was an irresistible development of modern illustration (so largely photographic) that borders should be abandoned and the ‘picture’ end only with the paper. This method may be suitable for for photographs; but it is altogether inappropriate for the pictures that illustrate or are inspired by fairy-stories. An enchanted forest requires a margin, even an elaborate border. To print it coterminous with the page, like a ‘shot’ of the Rockies in Picture Post, as if it were indeed a ‘snap’ of fairyland or a ‘sketch by our artist on the spot’, is a folly and an abuse.”

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