On 7/31/2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> 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.
It is peculiar how narrowly bound one can become to the issues in one's own area of interest -- in my case the reproduction of museum images. I conceived the book-cover question not in terms of the interests of the designer, but about the interests of the copyright owner of the underlying art, say a photograph of a museum-owned work. In such as case, were there no infringement issues (and ignoring Bridgeman issues), my question would have been of the same genre as the original one, which comes down to asking about reproduction without permission.
The used book industry, of course, in its published and on-line catalogues frequently will reproduce dust-jackets and even illustrated pages from within a volume. Certainly the artist given the commission for the work (if not an in-house employee) would be given a work-for-hire contract. I have never heard of a case in which a used book dealer was prevented from reproducing such materials. It stands to reason that publishers will consider the fate of their products in the after-market to be in their interest and therefore would not seek to prevent the practice.
But what about the copyright owners of the original art -- my original question? (Tyler's right; I shifted the question a bit.) The case I brought up concerned a copyright owner who did not want the underlying cover-art work reproduced. And I can imagine other copyright holders -- the estates of modern artists in particular, for no better reason than to control the reproduction of their intellectual property -- who might object to the practice. I think we'd have the same situation if the book-jacket art was not owned by the publisher but by an independent contractor.
Perhaps publishers should try to extend their rights to use copyrighted materials from their book-lists by claiming for themselves and for all owners of the book, the rights to reproduce dust jackets and illustrations for the purpose of primary and aftermarket sales.
As for Tyler's remark about the publisher not standing up for the right of fair use. There are some publishers who will publish images without permission if they feel that the use is a fair one, but these same publishers will back down, in advance, if they hear that the copyright holder is objecting. Standing up to press for such a right when the warning is in the air ultimately can be expensive. If this is a battle they wish to pursue, they'll probably want to choose the battleground carefully.
Robt Baron
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