Re: image of book jacket used to sell used book

On 07/28/2000, Robert A. Baron <rabaron[_at_]pipeline.com> wrote:
>
> On 7/27/2000, John R. Levine <johnl[_at_]iecc.com> wrote:
> >
> > On Wed, 26 Jul 2000, Robert Smith <smithre[_at_]mail.ctsfw.edu> wrote:
> > >
> > > Someone owns a copy of a used book. They wish to sell it on Ebay.
> > > To do so, they propose to scan the jacket and make it a part of
> > > their listing.
> > >
> > > I'd advise they seek permission from the publisher to do this.
> > >
> > > Am I correct, or am I missing an obscure fair use principle?
> >
> > People have been publishing advertisements and catalogs including
> > pictures of the books offered for sale for, oh, a hundred years
> > or so. It seems to me that it's a little late to claim that the
> > owner of a book doesn't have the right to use a picture of the
> > book in an attempt to sell it.
>
> But what about the case in which a book-cover bears an image of,
> say, a work of art that has been licensed from a museum or copyright
> owner. The publication of the book cover in a sales catalogue
> without license, technically will be an infringement of the underlying
> work. The likelihood that the owner of the underlying copyright would
> object is nil, but I have an example of one case in which this became
> an issue: (While not a reproduction for the sake of sale, the issue
> is similar:)
>
> Museum One lends Museum Two one of its works for an exhibition.
> Without permission, Museum Two uses Museum One's work as the cover
> illustration of its monthly bulletin. Scholar Jones, writing about
> the promotion of art in today's museum environment wishes to use the
> bookcover as an illustration to her article. Museum One refuses
> permission to reproduce the underlying work because its presence on
> the bulletin cover is an infringement and does not conform to its
> policy on the reproduction of works from its collection.
>
> Ordinarily, I'd claim "fair use" in a situation such as this, but
> the journal who agreed to publish the article has a policy of
> requiring license for all works illustrated in its pages.
>
> Presumably Museum ONE would object to this bulletin cover being
> reproduced in a sales catalogue.

I can think of reasons why this situation arguably should be treated differently. Most importantly, the use of the work on the cover was unauthorized and infringing in this case; whereas in the original hypothetical, there was no indication of that. Second, your hypothetical assumes an underlying work with a different copyright holder; whereas in the original hypothetical, the book jacket image is usually commissioned by the publisher for the book. It would be a supplementary work, eligible to be a work made for hire with a written agreement, which would be owned by the publisher and/or the copyright owner. Third, there is [at least arguably] a functioning market for museum art images that does not customarily extend to book covers.

Notwithstanding all that, I still think it's a fair use. The museum doesn't have a copyright in an image of a [2-D] work in its collection unless it was assigned to the copyright by the original artist. Museum Two might be liable for breach of contract, but Scholar Jones did not enter into any such agreement. It's a shame the publisher of the article wouldn't stand up on that one.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Jul 31 2000 - 17:39:11 GMT