A new reflection on image copyrights and legal issues with book cover design

Today I saw this post about Richard Prince taking other people’s Instagram photos without permission or warning and selling them in a New York art gallery for $90,000 each.

instagram photo copyright

It’s not his first offence: he’s previously taken photos from magazines or from other photographers and changed them just a little bit (like cutting out and swapping them figures). He’s been sued, but won the case because his “art” is “transformative.’

The definition I learned of copyright permission was that the new piece had to be about 75% unlike the original, or nearly unrecognizable. But Prince’s work is obvious and blatant. Yes, he’s stealing. No, I don’t believe that his weird and unrelated little comments he added under the Instagram photos constitute a “transformative work of art.”

I think it’s silly, and stupid – and he’s making a lot of money from other people’s work. How is this OK? Basically, because he’s already won a court case, and he’s unlikely to be sued by an individual.

If he used Hello Kitty or an Angry Bird, he’d get sent  a cease and desist letter (I know this, because I’ve received them for previous art when I was still exhibiting my own paintings).

Some of my illegal work
Some of my illegal work

Large companies with money can through their weight around. But an Instagram user, even one with lots of followers and public support, probably aren’t very willing to throw away thousands of dollars and months of appeals into a lawsuit that, based on past verdicts, is unlikely to be successful.

How this relates to art

In the Asian fine art scene, I’ve witnessed hundreds of contemporary paintings with Darth Vader or Hello Kitty or Pokemon and hundreds of other easily identifiable, copyrighted figures. These paintings sell for tens of thousands of dollars. Nobody seems to care about copyright infringement. I don’t know what the deal is, but I assume this: once an artist is supported by a gallery or agent, their work is recognized and legitimized as “Real Art.”

If the reproduction of a copyrighted image is “Real Art” then it counts as “transformative” and so the copyright no longer holds. Because “Real Art” is sort of like freedom of speech, which is protected.

But if your art is not yet recognized by the professional art scene, even if your paintings are really good, then you may be in trouble, because the companies will send a cease and desist later – basically questioning whether your art is “Real Art” or just some paintings hoping to make a quick buck by exploiting recognizable figures.

In which case, you’re on your own to prove that it is “Real Art” – and this is unlikely to happen, unless you get the support of critics or galleries and agents in the art community. In practice, I don’t think they could ever come after you anyway (and if they did, they’d probably only be entitled to whatever proceeds you made off the sale of those works in question). I plan to test this theory heavily in the future by painting series of famous celebrities and pop icon figures.

How this relates to book cover design

Recently I’ve been thinking a lot about book cover design: is it an art, or a skill, or something in between? Obviously it’s packaging, an advertisement, a commercial application.

But why can’t art be commercial? Most of Mucha’s best work was on poster advertisements for products and events; it’s now internationally recognized as masterful works of art.

A lot of my book covers are functional; but just as many are a product of a creatively nuanced process of discovery, wherein I explore and combine images to create new scenes and worlds.

If Richard Prince can take Instagram photos and sell them for 90K, why can’t I use Instagram photos on the cover of my romance novel and put them for sale at 99cents?

In Richard’s case, the thing he’s selling, the thing that has value, is the picture itself, augmented by silly new lines of random text – the justification of it being “Real Art” is paradoxically in the price tag.

In my case, the thing I’m selling would be the book, the story, and the image would be used to sell my story; a different application.

As I’ve mentioned before, indie authors need to be careful about where they get their book cover images to avoid stress and legal action, but as I’ve also mentioned before, it’s a messy, gray area. You shouldn’t take risks you can’t afford to lose, but for my part, I wouldn’t mind experimenting with published books using blatantly stolen pictures on them just for the controversy and boost in publicity. Sometimes it pays to be audacious. It certainly has in Richard’s case.

About Derek Murphy

Hey there! I'm a philosophy dropout and book cover designer with a PhD in Literature. After spending a decade as a starving artist, I vowed to create the life of freedom my restless spirit demands. I covet a cabin full of cats, where I can write young adult fantasy novels and do a few editorial critiques to pay for my cake addiction. Sometimes I live in castles. FREE GUIDE: Book Marketing is Dead.