At the risk of turning this into a discussion more suited to a legal
list than to Rara-Avis (something it would be fairly laughable to do, as
neither of us -- I believe -- is a lawyer), let me respond to the two
points you raised:
1) It is not necessary to *file* for a copyright on a work in order to
enjoy copyright protection. In the past it was -- but copyright law has
changed over recent decades and it no longer is. Filing for copyright
provides the holder of the copyright with *additional* remedies (such as
the ability to claim legal fees, as you mention, or the ability to sue
for *trebel* damages -- three times your actual loss -- rather than only
the damages you actually suffered), but under current copyright law, the
copyright exists immediately upon creation of the work and is held by
the creator regardless of whether the creator ever registers ("files")
that copyright. To the extent that the cover of a book is/contains
original, distinctive creative work (for instance, original text written
for the cover...but distinctiveness and originality can also refer to
the selection of typefaces, the organization of text and graphical
elements, etc. -- anything that is a "manifestation of creative work
having an individual character"), it is copyrightable. And to the
extent a work is copyrightable, it is instantly and automatically
copyrighted upon creation. Filing or registering is unnecessary. (From
a relevant legal analysis that depends on thinking of book covers as the
"packaging" used to market the product contained within: "Protection of
packaging (including the label on it) that can be considered a work in
the meaning of the copyright, does not depend on the fulfilment of any
formal requirement – especially registration. It starts when the
packaging is created.")
2) Yes, I could sue an apparel company that made a line of Hard Case
Crime t-shirts without my permission for trademark infringement, for
reproducing the Hard Case Crime logo -- but I could also sue for
copyright infringement, for reproducing the original copyrighted work
each cover represents. The two are not mutually exclusive. The artist
could also sue for copyright infringement -- the three are not mutually
exclusive. (The artist couldn't sue if he'd sold all rights in the
painting to my company. But in practice we rarely buy all rights, we
generally only buy certain book publication rights.) Now, the apparel
company could raise the defense that their line of t-shirts (or
whatever) is a "transformative" use that is protected under the Fair Use
exclusion to copyright protection, and a judge would have to decide
whether that argument would fly (if the t-shirts *altered* our covers in
some creative, expressive way, as Andy Warhol did with the Campbell's
Soup can, the apparel company would have a stronger case; if the shirts
simply reproduced our covers exactly the way they appeared on the books,
entirely and without alteration, they'd have a weaker case), but
regardless, they wouldn't be arguing that no copyright exists, they'd be
arguing that they're entitled to use the copyrighted work in this way
despite the fact that a copyright exists, because of Fair Use rules.
(And mere "repurposing" -- to use your word -- is not generally
sufficient to demonstrate Fair Use. If it were, you could sell t-shirts
containing the entire text of a Hemingway short story without paying the
Hemingway Estate just because you "repurposed" the story by printing it
on a piece of clothing rather than in a book. Similarly, you could
argue that reading a novel out loud into a tape recorder and making the
recording available for sale is "repurposing" a book in the same way
that taking a book cover and slapping it on a t-shirt is -- and you'd
lose that case in a heartbeat if you tried it.)
Note, incidentally, that I am not personally against Fair Use, properly
invoked -- I like Andy Warhol, I like Wacky Packages, I like fanfiction
-- or particularly in love with copyright as currently defined, since it
is susceptible to great abuse. I'd be delighted to see the law changed
in various ways, even if that meant losing some protections I currently
enjoy as a publisher or a creator. But the current law is the current
law -- and under the current law, describing book covers either as
uncopyrightable or as not subject to copyright protection unless the
copyright is "filed" (i.e., registered with the government) is simply
false, as is the suggestion that taking a work of art out of one medium
and reproducing it in another is sufficient in and of itself to protect
against a copyright infringement claim.
--Charles
--- In rara-avis-l@yahoogroups.com, "Jeff Vorzimmer" <jvorzimmer@...>
wrote:
>
> > when a painter paints a painting or a
> > photographer takes a photo, that work is protected by copyright just
as
> > much as it is when a writer writes a novel.
>
> Agreed. The images themselves are covered by copyright, as visual art,
separate from the copyright of the book. If it's work for hire then you
hold the copyright, unless otherwise agreed upon by you and the artist.
In order to copyright the cover, you would have to file a separate
copyright even if it's your own book and you contracted the artwork for
the cover.
>
> I'm assuming from my knowledge of copyright law that you don't file a
separate copyright on the cover itself. Maybe you or the artist do for
the image, but not the cover. Am I right? This may seem to be a question
of semanics, but we're talking about the law and the possiblility of
someone claiming damages and legal fees, etc.
>
> > If an apparel company decided that they like my covers and created a
> > line of clothing that displayed my covers on the front of shirts or
the
> > backs of hoodies or whatever, I could sue them.
>
> Yes, but not because you have a copyright to the cover or even the
image. Even the image itself is now part of another work of art, which
they are repurposing but not as a book cover. You could sue only for
trademark infringement of your logo. Only you have the right to license
your trademark.
>
> Bottom line is that any use other than as a book cover could be argued
as fair use unless someone is making a profit selling images that
containing your trademark and you can argue that these items are selling
because of the use of your trademark.
>
> Jeff
>
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