RAQs: Recently Asked Questions

Topic: Do Book Covers Fall Under Fair Use? - 08/11/2021
We are trying to determine if sharing only book covers as part of video book talks published onlin...
Posted: Wednesday, August 11, 2021 Permalink

MEMBER QUESTION

We are trying to determine if sharing only book covers as part of video book talks published online is Fair Use. We think we can support a Fair Use evaluation. However, we would like to know how library management software is allowed to include covers in our online public access catalogs. How to do they get permission? We would like any feedback and information regarding book covers. Many thanks.

WNYLRC ATTORNEY'S RESPONSE

I am writing this answer on a Friday afternoon, so before I give a formal answer (and I will, this is an important question), please indulge me in a small flight of fancy.

Instead of asking about book covers in a video book talk, let's pretend it's 1978 and you've asked me if you can bring some friends to Studio 54, where entry is based not on four fair use factors[1], but depends on a subjective analysis of fashion, beauty, eccentricity, and fame.[2]

So here we are.  It's Friday night, under the glittering marquee, approaching the doorman...[3] 

Your friend with the feather boa and the spandex?

IN.

Your friends clad totally in cutting-edge Halston?

IN.

Your friend whose art opening was recently on the cover of the Village Voice?

Mmmm... go to the back of the line and mingle, we'll see what we can do in an hour or so.

Your friend who is actually the nicest person on the planet, but is wearing a middy blouse and clogs?

OUT.

You? 

[...I'll let you decide if you have made the cut.[4]]

Flash back to a Friday afternoon in pandemic-fatigued 2021, book covers, and this fair use question.

Fair use is always complex, but adding book covers to the mix ups the ante.

That is because book covers, depending on what they feature, can have many layers of intellectual property protection--not only multiple copyrights (for the art, the cover arrangement, and the book as a whole), but any trademark on the cover and, if the cover features a photo of a real person, that person's image.

Enter my analogy to the door at Studio 54.  Not only does the usual analysis apply (is a person old enough to get in?) but with book covers, the content warrants an extra array of analysis...getting you "in" (to fair use) or "out" (risking infringement).

Which brings us to the member's very insightful sub-question: if you have to be careful about covers, how do the various library management systems ("LMS") out there include them in their catalog entries?

Since there are numerous LMS's, I can't answer for each one, but generally, permission for such a use is conveyed to the LMS by the publisher. Sometimes (if the cover is a very fuzzy copy) they are relying on fair use.

Here is a sign that your LMS has secured permission for the cover (this one is from the Terms and Condition for OverDrive[5]):

Screenshot of LMS from OverDrive

Of course, there are numerous LMS's, and each has its own approach.  However, this is the one I have seen most frequently in LMS contracts.

So, with all that said, what are some ways to mitigate the likelihood or limit the seriousness of a legal problem when considering incorporating book covers into a video book talk? I offer the following techniques:

1.  Rather than display a scan or borrowed digital image of the book, have the book held or displayed by the person giving the presentation.

2.  Do not use the cover image for purposes of promoting the video, especially if it is on a monetized site.

3.  Conduct your fair use analysis on a cover-by-cover basis, and retain a copy of the analysis to be able to show you made a good faith determination that the cover needed to be used for the presentation.

4.  If you plan to have the video feature the cover for long periods of time (relative to the presentation) make sure the cover is related to what is being said.  For example: the cover to the graphic novel adaptation of "Parable of the Sower" (found at https://www.hoopladigital.com/title/12473453) is a great contrast to the novel's cover (found at https://www.octaviabutler.com/parableseries); if the speaker's entire talk on your video is a "compare and contrast" of these two images, it could be a fair use to have them up on the screen the entire time.  However, that same defense might not apply if the purpose of the discussion is a broad presentation about the power of speculative fiction.

Of course, you can ditch relying on fair use and ask the publisher for permission...but if your use is genuinely "fair," there is of course no need to ask...just like Bianca Jagger never had to ask permission to enter Studio 54.[6]

I hope this has been helpful, and your videos make it safely past the doorman of Section 107[7] of the Copyright Act.                                                                                                           

 



[1] https://www.law.cornell.edu/uscode/text/17/107

[2] And possibly, access to cocaine.

[3] Yes, he's a door "man."  This is 1978.   But Studio 54 did fight gender norms.

[4] I speak as a person who would NOT have made the cut.  Of course, in 1978, I was five, but even pulling from my coolest, most cutting-edge day (sometime in 1997) I would not have made the cut.

[6] I think she got permission the night she rode a horse in there, but that was arranged in advance by the management.

[7] Which lists the fair use factors.  Here it is: https://www.law.cornell.edu/uscode/text/17/107.

 

Tags: Fair Use, Book Covers, Cocaine, Disco, LMS Contracts

Topic: Decoupaging Book Covers - 12/30/2019
I would like to decorate a cart for use in a free books initiative I am planning for our school. O...
Posted: Monday, December 30, 2019 Permalink

MEMBER QUESTION

I would like to decorate a cart for use in a free books initiative I am planning for our school. Our art club is interested and willing to paint and design it. I understand that we can't have them paint covers from books but we'd like to print out book covers and then decoupage them onto parts of the cart. Would that be acceptable? We want to promote the books while respecting copyright! I've printed out book covers to promote books in the past for special events but am careful to not put them online. They are one copy for a limited amount of time. Is this different?

WNYLRC ATTORNEY'S RESPONSE

A tricked-out, decoupaged book cart[1] sounds awesome (especially if it comes with free books).  A commitment to honoring copyright is awesome, too.  And it is entirely possible to do both.

How?

In the spirit of the educational environment that spawned this question, here is an "Assignment" to teach the students about copyright while designing a book cart that celebrates the works it will distribute:

Part 1.  Pick at least five[2] books with covers or illustrations that are OUT of copyright this year.  For extra credit, look up what year of publication this would be on Cornell's Public Domain Guide[3] (hint: in 2019, this would be anything published before 1924).  Make sure you're working from the date the art was published, not when the text was first published![4]  Copy the covers and decoupage to the cart as needed.

This is the "Public Domain" solution.

Part 2.  Pick at least five books with covers or illustrations that are IN copyright.  Generate your own version of the illustrations with some key details changed: maybe the setting is now your town/city, or the characters look like students and teachers at the school.  Make sure your changes say something about the school or the place where you live, as well as the book.  Write a paragraph about why you made the changes and creative choices you did.  Do not sell your work, and resist posting it online.  Just apply decoupage and let the cart wheel around the school, enlightening and educating people.

This is the "Fair Use," solution.[5]

Part 3.  Pick at least five books related to an assignment for a class that will be offered as free books.  Work with the librarian to obtain a licensed copy of the covers you picked from a service,[6] and make sure that as you decoupage the covers, you are within the terms of what is allowed by the license.[7]

This is the "110 Solution."[8]

My grading rubric for this three-part assignment is based on: verifying the publication dates for part one; the thoughtfulness of the paragraph for part two; and the clear application of the license for part 3. 

Ability to demonstrate all three means the cart gets an "A."[9]

Now, this "assignment" encourages maximum use of the legal avenues available for such a project.  Because of that, it is a tad complicated.  But as the member suggests there is a simpler solution: licensing.

The one problem with solely relying on licensed material for a project like this is that you have to very, very careful when you read the license.  Some licenses cover only copies made a specific way.  Others require attribution. Still others say the use must be "non-commercial,"--a term that is always up for debate (academic publishers, for instance, would consider use by a school "commercial," since schools are their main source of commerce).  And finally, licensors also often reserve the right to change the "terms of use" without warning. 

So, if the project depends on a license, make sure you read the terms carefully, print a copy of the license just as it appears when you download the pictures for the project, and plan to make sure the use of the cart stays within the terms of the license.

And with that, whether you decide to go for the copyright trifecta created by the assignment (public domain, fair use, 110), or simply use a license: cart on!

 


[1] One of my favorite devices in the world is the book cart.  We use them at my law office, where attorneys and paralegals have color-coded carts to tell them apart.

[2] The numbers aren't as important as the ratio, here. 

[3] https://copyright.cornell.edu/publicdomain

[4] For instance, a version of Tom Sawyer that came out in 1980 with new illustrations would have the text in the public domain, but the illustrations--including the cover--would be protected by copyright.

[5] Based on 17 U.S.C. 107: https://www.copyright.gov/title17/92chap1.html#107

[6]  Like the one mentioned by the member.

[7] For instance, decoupaging and adding the art to the cart could be considered creating a "derivative work," so make sure that use is not barred by the license.

[8] Based on 17 U.S.C. 110(a), which allows the "display" of ONE graphic work by a not-for-profit, accredited school for purposes of face-to-face instructions (so long as that copy was properly obtained). 

[9] If anyone uses this assignment, please let me know, and please send a picture (which we will NOT put on the internet without your permission). 

 

Tags: Copyright, Crafting, Book Covers, School Libraries

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.