Copyrights and Images for Book Covers
by Deb Houdek Rule
President/CEO Variations on a Theme publishing
Amazon, Barnes and Noble, Smashwords, and other print and ebook distributors created a revolution in the writing and publishing world when they opened up their online book stores to independent writers and small press publishers. Suddenly anyone can be a published – or self-published – author; or, as I did, start a small press publishing company that would not have been possible a few years ago.
My publishing company, Variations on a Theme, (variationspublishing.com) began operations in May of 2012, just over a year ago. Before starting the business, however, I put in over a year of business planning to make certain the structure and operation of the company was workable, and Variations on a Theme would be able to publish professional quality works which can stand proudly on a shelf next to any “traditional” publisher’s titles.
A major consideration, and ongoing concern, is always copyrights, particularly involving images.
Everyone wants a great cover for their book. It’s a valid marketing consideration, as books genuinely are judged by their covers. But as soon as you step into the realm of images and photographs, you’re stepping into a minefield which can destroy your writing career, shut down your business, and cost you a great deal of money, if you’re not careful and wary.
Things to remember:
- You are not too small to be sued.
- You are not too small to be noticed and stopped by someone who can and will shut you down.
- A disclaimer about your good intentions, or your lack of intention to infringe on someone’s copyright, is meaningless.
- Whether you make a profit or not, or intend to make a profit or not, is irrelevant.
- Your use of images is commercial.
- If you take it and use it without proper permission, it’s stealing.
- Flinging the phrase “Public Domain” about can get you into trouble if you don’t understand it.
- You are responsible for what you publish, not the source you got the image from.
The first thing you want to ask yourself is: Do I want to be legal and proper? Or just the kind who hopes I don’t get caught?
The idea that no one will notice you, and you can get away with it, is pervasive. Consider this story that was told to me in film school in Hollywood as we were learning about rights, copyrights, and permissions: A small tire store in a small city far from Hollywood made a television commercial. It only aired locally, and wasn’t a big deal. It didn’t cost much, and they made it themselves. But they used the theme music from a major motion picture… without permission. The film’s producer happened to be traveling through, turned on the television in his hotel room, and saw the commercial. That little business who didn’t think anyone would notice their infringement was stomped on, and the story ended up being told as a warning to generations of film school students.
Do things right and you won’t have to worry.
Copyright law is complex and convoluted. I’m not a lawyer, though I have worked for a copyright lawyer for a decade, and have seen Cease and Desist letters, and lawsuits, sent out that would chill your blood.
The most important things to remember when working on your book covers are this:
- You are interested in commercial rights, not editorial use. Editorial rights are for news.
- If you find a photo on the Internet doing an image search, it is not yours to just take and use.
- Read everything in licensing agreements and terms of service and if in doubt, back away.
Photos, graphics, and other images are owned property just as your book is. Respect the artists and owners, and their copyrights. Photographs, however, even though they may be tagged as public domain, have issues beyond the ownership of the photographer and his or her copyright.
Property rights in photos:
If there is recognizable property in a photo, even if you took and own the photo, it may not be used safely. I have some lovely shots I took of downtown Chicago, but I can’t use them for commercial purposes – book covers – because they include recognizable buildings and logos which cannot be used. I may not be able to use a general shot of a city street because recent model automobiles whose design and appearance are protected appear in the photo. Or a store logo appears. Yes. The rules are this fussy, and the consequences are very real.
Suppose you have a photo of Grumpy Cat, the famous kitty with the permanent scowl whose viral pictures are everywhere on the Internet. You took the photo. It is your very own photo without any doubt. Let’s say you took it at a public event. The owners of Grumpy Cat have taken the kitty to conventions. Let’s also suppose the owners know you took the photo, you even asked if it was okay for you to take the photo and they said, “Sure.” You still cannot use that photo of Grumpy Cat as your book cover. You own the photo, but you do not own the likeness of the very recognizable Grumpy Cat to promote your commercial use.
Suppose you want to do a book cover for a story about college kids smoking pot. Let’s say it’s a noble anti-drug story. On the cover you place a photograph of a well-known college, with a major brand name soda pop company’s can reconfigured into a bong in front of it. You have just created a situation where you used two trademarked logos without permission, and – worse – put them in context of illegal drug use. Watch out for recognizable trademarks and logos. Don’t use them.
Photos of People, including Celebrities:
This is another danger zone and an area where understanding the difference between commercial and editorial use is critical. Magazines, newspapers, and television news programs can use photos of people and celebrities without specific permission because their use is editorial, which means basically news. For your use in a book cover, you must always consider your use to be commercial. This means you have to adhere to a stricter set of rules.
If you find a photo of a movie star from the 1940s on a website and the photo is labeled “Public Domain,” you must still tread with caution, even if that movie star has long since passed away. Public domain rules vary by country and, in the US, can be convoluted and tricky. The photo of the movie star may be public domain in the US but you still may not be able to legally use it in a book cover because you are creating a derivative work which evokes a character or movie which still is under copyright.
I can feel you ready to scream and pull out your hair. Believe me, I understand. But wait, it gets worse…
That photo of the movie star may be truly public domain and okay to use, but the likeness of the person in the photo, rather like Grumpy Cat, is owned by the star’s estate or studio. Ouch.
There was a case of Marilyn Monroe’s likeness being ruled as having entered the public domain. That takes care of one hurdle. But, that still doesn’t mean you can use any photos you find of her. The photos are owned by a photographer and may or may not still be under copyright. Or the movie from which the photo or character is derived may be still under copyright.
Rights can be acquired for such photos, even of celebrities, properly and legally. But you must be willing to invest time, research, and money into the project to determine who owns those rights, then to acquire them.
So, what on Earth can you use?
Before starting Variations on a Theme publishing I spent three years building a photo archive of images I unequivocally own. I also have inherited ownership of my late father’s slide collection, which gives me vintage photos of cars, airplanes, and locations I also own and may use safely. Even still, as I’ve mentioned, I have to be watchful of trademarks, logos, recognizable property structures, recognizable people (famous or not), and the like. But it still gives me a resource to create original cover designs without having to purchase photos.
The cover from the science fiction novel, To Climb a Flat Mountain, by G. David Nordley is composed of three primary images – two photos of locations in Iceland which I took, and a NASA photograph of a starfield. The cover for Time’s Fool incorporated a watercolorized treatment of a photo of the Chicago River coupled with a NASA photograph of a nebula, and some graphical effects, while Season of Marvels is an unmodified photo I took in the Orkneys.
NASA and the JPL/Hubble Space Telescope websites are excellent places to find lovely images which are free and without copyright restrictions. In the US, material produced by the Federal government is not copyrighted and may be used by anyone.
But STOP… you must still read the rights information, and crediting information, on every image before you take it and use it. Nevertheless, these are excellent resources.
The US Library of Congress website is, or used to be, a good source of old, vintage, and other images. The Library of Congress site, however, highlights the perils of unsourced images and rights involved. A few years ago there was a large collection of photos available on the Library of Congress site. Those have to a large extent been removed… because of copyright issues.
You still may find some nice images on the Library of Congress site you may use, but be sure to read the copyright and rights information on each one before you use it.
There are stock photo sites where photos may be purchased. Some are expensive, some are not. In all cases you must read the licensing information carefully with the understanding that your use is commercial, not editorial. If they aren’t promising you commercial use rights, that site is not offering you anything you can legally use for a book cover, no matter how slick, friendly, and professional the site appears. Even if they promise to provide a legal defense, be certain they are offering that guarantee for commercial rights, not just editorial rights. And be certain you adhere to their commercial rights terms in the strictest detail.
And finally, some of the print-on-demand and ebook publishing services, like CreateSpace and Amazon’s Kindle Direct Publishing, include online cover creation services and images. They may not provide the exciting, exotic cover image you want, but they are safe to use.
I can hear you thinking, why not just take the risk and use whatever image I find that I want to use. I see people do that all the time. Yes, I see that too. And it’s still illegal. It’s still risky.