At ThrillerFest this past July (as in thriller writers, not the Thriller album), a writer I met at one of the conference cocktail parties asked about copyrights and book covers. She wanted to know who owned the copyright for the cover art (the artist, the publisher, or the author), and could she use a book cover on her blog when reviewing the book?
As with anything related to the law, the topic of cover art and copyright ownership is multi-faceted and for some, down right confusing. Lucky for us there were plenty of beers for the conversation. So if you want to feel like you were at the bar listening to the discussion, pick up a glass of wine, turn on some loud background noise, and read on.
As a quick reminder about copyright law, when cover art for a book is created, the work is automatically copyright protected. The copyright owner has the exclusive right to reproduce the book cover, prepare new works based on the cover, distribute copies to the public, display the cover in public, and transfer any or all of these rights to third parties.
Who owns the copyright for the cover of a self-published book?
Typically, cover art for a self-published book is created either by an independent artist, a book cover service, or the author.
While you might think that because you paid someone to create your book cover that you own the rights to use it, you do not. The independent artist who created the book cover owns the copyright. What you bought was the book cover itself (much like buying a painting) and not the copyright to the cover. In order for you to sell your book with the book cover, whether in electronic or hard copy formats, you would need either a license to use the book cover or a transfer of full rights in the copyright of the book cover. Likewise, if book cover service is used to create the cover art, the service owns the copyright. The author would need to secure a copyright license. If the author creates the cover art herself, then she owns the copyright.
The copyright license dictates how the author can use the cover art. Authors, therefore, should understand the limitations in the contract. Typically, the license to use the cover art will be found in the Grant of Rights section of your contract. Read it carefully.
Let me say that again. READ IT CAREFULLY. Sorry, was I shouting?
You need to determine if the license fits your needs, which requires that you understand the terms and the limitations. For example, does the license transfer the copyright in the book cover completely? Does the license limit your use to publications only? Is there a limitation on how many physical objects can be printed with the cover art (books, marketing swag, advertisements)? As always, if you have legal questions with a contract, consult a qualified publishing law attorney.
A word or three about the rights to the underlying source material. Often the cover artist will use third-party source materials when creating the book cover, like stock photos or design elements, which are copyright protected too. The person who creates the cover art should secure a license to use the underlying work. Make sure you know what rights the artist retained in the underlying source material so that it does not limit your use of the book cover.
I would ask the cover artist to list in the contract the underlying source material used to create the cover and whether a license was secured. For example, if a photo of a model is used, was a release signed? Remember, the artist cannot license or transfer rights in the underlying source material if she has not secured them first.
Who owns the copyright for the cover of a traditionally published book?
Whether a book is published through a large or small press, typically the publisher owns the copyright. The cover art tends to be designed by in-house artists in the art department. Cover art created by in-house artists is considered part of the employee’s scope of employment. Accordingly, the cover art is considered a “work made for hire” and the copyright is owned by the publisher. Unless your contract with the publisher states otherwise, you do not own the copyright in the book cover.
Sometimes, however, an independent artist outside the publishing house creates the cover art, especially if the publisher is small, or someone more notable or with different skills is needed. Under these circumstances, the contract will dictate who owns the copyright. Usually, the artist owns the copyright, and the publisher has secured a license to use it. Ask your publisher before your book is published.
If a book contract is terminated, the publisher’s copyright license also terminates, and copyright ownership in the book remains with the author. This does not include the copyright to the cover. This is why you see new covers when traditionally published authors switch houses or publish the book again via self-publishing channels.
Is it legal to use someone else’s book cover image?
One common use of book cover images (besides as an actual book cover) is by writers and bloggers reviewing a book. Another is by librarians listing a book in a catalogue. It makes sense to use the image because the book cover enhances the review or commentary about the book.
Technically, publishing the book cover on your blog or using it in a library catalogue is a reproduction of the copyright protected work. If permission or a license has not been secured, then you have violated the copyright.
Now stop whining and biting your nails over this. I said technically. In most cases, the risk of being sued for copyright infringement for using the book cover under these circumstances is low.
Why the low risk?
Think about it. Book covers promote the sale of a book and generate discussion. Publishers and authors love when you use their book covers. It is free press and easy marketing, especially with reviews (whether negative or positive, it is still visibility). Do you think Goodreads has permission for all those thumbnails? Of course not.
Now, if you still want to be ultra conservative, then seek permission to use the book cover or secure a license. But from this writer’s perspective (who is an Intellectual Property lawyer), that is a huge waste of time and usually unnecessary. That said, if you are modifying the book cover to create something new (like using the cover to make your own book cover), or disparaging the book cover (like creating something pornographic from the original cover), then you might find yourself the defendant of an infringement suit unless you secured permission or a license from the copyright owner first.
An argument could be made that using a book cover for reviews and catalogues is considered fair use. Fair use allows use of images in certain circumstances without permission or a license from the copyright holder. Fair use is determined on a case-by-case basis, and only a defense (i.e., you use it once you have been sued). In general, one might argue using a book cover in a review is considered commentary or criticism and thus fair use. If you want more in formation on the fair use factors, see this article by Jane Friedman or this Stanford University article.
Another provision under the copyright laws that suggests using book covers for reviews and catalogues is permitted would be provision 17 USC 113(c) which covers “useful articles” or “articles having an intrinsic utilitarian function that is not merely to portray the appearance of the article or convey information.” If you assume a book is a “useful article,” then using the book for a review or catalogue is permitted under Section 113(c) in connection with “advertisements or commentaries related to the distribution or display of such articles.”
A book cover has its own copyright protection, which is separate and in addition to the copyright protection for the book itself. Before your book publishes, make sure you understand who owns the copyright to the book cover and whether you or your publisher have secured the appropriate rights to use it. If you decide to use someone else’s book cover for your blog or library catalogue, remember there is some risk of being sued for copyright infringement, but that risk is relatively low.
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