Re: RARA-AVIS: paperbacks to poster

From: hardcasecrime (editor@hardcasecrime.com)
Date: 25 Jul 2010

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    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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