On Mon, 24 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?
The first question is if the cover is even part of the copyright for the book. I'll assume it is, but it's not obvious to me.
On Mon, 31 Jul 2000, Laura N. Gasaway <laura_gasaway[_at_]unc.edu> wrote:
>
> While under section 109(c) one is permitted to display a copy
> of the work, transmitting a copy of the image is not permitted.
> So, technically reproducing the cover for display on eBay also
> represents a reproduction and a transmission in addition to the
> narrow exemption in 109(c) which reads:
>
> ... "the owner of a particular copy lawfully made under this
> title, or any person authorized by such owner, is entitled
> without the authority of the copyright owner, to display that
> copy publicly, either directly or by the projectio of no more
> than one image at a time, to viewers present at the place
> where the copy is located."
Section 109 outlines the doctrine of First Sale. The above probably implies that posting the cover isn't covered, but a straight fair use argument might.
Fair use was restated in 17 U.S.C 107:
http://www4.law.cornell.edu/uscode/17/107.html
It has four factors:
(1) Purpose or character of use (commercial v. non-profit)
By posting the cover, you are advertising for yourself, trying to generate greater interest in your for-sale copy. However, you are not profiting directly from the act being considered for fair use, and you do have a First Sale right to sell the book. This might be a wash or slightly against you.
(2) Nature of the copyrighted work (eg news vs artistic) It's probably more artistic. This would probably go against you.
(3) Amount and substantiality of the portion used It's just the cover. Big win here.
(4) Effect on potential market for or value of work
You are giving them free advertising. The act of exercising your First Sale right to sell your copy of the book can't be considered to harm the market. It seems highly doubtful somebody would refrain from buying the book because they have a scanned copy of the cover. In fact, cover shots are often used to sell the books in catalogs. The non-equivalence of book and cover is so true that it is a cliche "You can't judge a book by it's cover". I'd say it's a big win here.
Collecting these together, I'd reason that winning 3 & 4 big overrides loss of 2 and slight loss of 1. So I'd call it fair use.
Of course, if you can find it, you could be clever and deep link to an online bookseller for the image of the book's cover and sidestep the question entirely.
Bryan Taylor
<bryan_w_taylor[_at_]yahoo.com>
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