Copyright laws for book cover art: stock photography licenses and other things you should know

copyrightAllrightsreservedI mainly use stock photography for my book cover designs, but if I can’t find anything, I search long and hard to find an alternative. With book cover art, you need to be careful to get permission so you aren’t breaking copyright. But at the same time, copyright laws are confusing and open to creative interpretation.

Here are some things to consider:

1) Stock photography, standard vs. extended license

As a book cover designer, however, I can’t take such risks with my clients, which means I’m limited to two options:

A) I get it from a source that allows use with attribution. There are lots of photos on Deviantart.com or Flickr’s creative commons that allow use as long as you let them know and/or attribute them in the book itself (“Cover photo by xxx”)

B) Use royalty-free stock photography sites. “Royalty Free” means you won’t pay a percentage of future earnings, you only have to pay a one-time licensing fee. Most sites have some version of a standard vs. extended license – standard allows use, but not resale. So on the surface, you would always need to buy the extended license for a book cover.

However, even that can be avoided. Here’s the legal description from one of the sites I use, iStock.com, describing standard licensing:

(a) You may only use the Content for those advertising, promotional and other specified purposes which are Permitted Uses (as defined below). For clarity, you may not use the Content in products for resale, license or other distribution, unless (i) the proposed use is allowable under an Extended License which is available for the Content; or (ii) if the original Content has been fundamentally modified or transformed sufficiently that it constitutes an original work entitling the author or artist to copyright protection under applicable law, and where the primary value of such transformed or derivative work is not recognizable as the Content nor is the Content capable of being downloaded, extracted or accessed by a third party as a stand-alone file (satisfaction of these conditions will constitute the work as a “Permitted Derivative Work” for the purposes of this Agreement). For example, you cannot superficially modify the Content, print it on a t-shirt, mug, poster, template or other item, and sell it to others for consumption, reproduction or re-sale. These uses will not be permitted as or constitute Permitted Derivative Works. If there is any doubt that a work is a Permitted Derivative Work, you should either obtain an Extended License or contact iStockphoto’s Client Relations for guidance. Any use of the Content that is not a Permitted Use shall constitute infringement of copyright.

There are two reasons, given this description, why the Standard Use license may be enough for book cover design:

A) If you use a photo as a small piece of new artwork. Most of my book covers use five or six photos to make a new scene. The original is recognizable, but not immediately and not as the main event. “Fundamentally modified or transformed sufficiently” is subjective and very hard to prove – if you bought the standard license from a stock photography site, someone would have to see it, look up which license you bought, and actively contest your book cover (which I think is extremely unlikely)… and even then you could argue that you transformed the photo enough to make it an “original work.” It’s very gray territory. Of course you’d never want to be in the legal battle, regardless of the outcome, but since the photographer put the photo on the stock photography site and since you paid for it, I strongly doubt they would have grounds for action. However, if you used a photo for your book cover and didn’t change it very much, and it’s immediately recognizable (such as a model’s face), then you should buy extended.

B) The photo is not the content for sale. You can’t put the photo on a T-shirt and sell it, because you’d be reselling the content (the photo). But you’re selling the book, not the book cover. The book cover is more like packaging, which is very close to advertising, which is permitted. You aren’t selling the book cover as the content. And as long as the content is not “capable of being downloaded, extracted or accessed by a third party as a stand-alone file” (it isn’t; nobody can take the original photo out of the cover and use it) then you should be in the clear with standard licensing.

Why does it matter?

Standard licensing can cost around $5 – extended more like $70. So if you’re a self-publishing author on a budget, and you need 5 photos, it can add up. Pay extra for the main one, the book cover focus – especially the models – if they are immediately recognizable. But for other things that are heavily modified like the sky, foreground, background or small details, standard licensing should be fine.

 

2) What if you can’t find the copyright holder for a photo you found online?

You should always be careful not to use something you don’t have permission for – on the other hand, unless the author/owner of the content cares, is aware of the use, and actively pursues legislation, it’s never going to be a problem.

Sometimes you find a picture online and you don’t know where it came from. If it looks like professional photography, be very careful, because photographers are protective about their work. If it looks like hand-drawn art or graphic design, also be careful.

If it’s something made by someone in another country (not a big company, not someone super famous, just a guy) it’s doubtful that they could mount an international copyright claim – or that they would want to against a self-publishing author. If a big company was using their stuff, they’d have a reason to sue. It’s not a nice way to think however, and if you can find the person, try to contact them and offer to pay.

But sometimes there’s really no ownership – something got put up years ago, the website is dead, there’s no name or contact, and it’s perfect… it’s not a huge risk, and luckily if you’re self-publishing, that also means you’re flexible, so if anybody complains someday, you can just stop using the cover.

***Updated*** The way I understand copyright law is, your use of the image would have to directly compete with the original creator’s active marketing of the same product – he would sue to reclaim the funds he lost due to customers buying from you instead of him; if you were selling the original image on a coffee mug or Tshirt, the main selling feature of your product is the photograph, so he would be entitled to a royalty.

But if you’re selling a book, the cover is the packaging, not the product – still, as a product for sale, the original image would have to be changed enough not to be recognizable, or a small part of the whole design. And even then, the only people with the resources to sue would be big companies (and even they won’t actually do it, unless you’re making a lot of money from your book).

What actually happens is, someone will send you a “cease and desist” letter, or an angry email, or something like that. You’d apologize and say you couldn’t find the original source or the copyright owner, and you’d have to change your cover art.

Even so, it’s better to be safe – if you find something just perfect, hire an artist to recreate the art and make something very similar, but new.

 

About Derek Murphy

I help authors and artists turn their passions into full-time businesses, make a bigger impact, and blaze a luminous trail of creative independence. Right now I'm in Taiwan finishing a PHD in Literature, writing several books, and managing a handful of online businesses. Find me
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  • Josh

    Really unfortunate advice in number 1. For the love of god, please do not use someone else’s art unless you have permission or have payed for the rights. If the main consideration is whether or not you’re going to be sued, you are approaching book design backwards.

    • You’re right Josh, I was offering a counter-argument to the standard articles I see online, but that’s no reason to give bad advice. I’ve edited the document to be more cautious.

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