Picking up on your Warhol comment, Charles, I know at least one photographer sued Warhol for turning his photo into a silkscreen. And I'm pretty sure Shephard Fairey was sued by, I think, Time Magazine for using one of their cover photos as the basis of his Obama poster. Not sure of the final disposition of either of those cases.
Mark
> To: rara-avis-l@yahoogroups.com
> From: editor@hardcasecrime.com
> Date: Sun, 25 Jul 2010 13:11:27 +0000
> Subject: Re: RARA-AVIS: paperbacks to poster
>
>
> 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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>
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