Re: RARA-AVIS: paperbacks to poster

From: James Michael Rogers (
Date: 25 Jul 2010

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    I know that photographer! It's a she, actually. She used to have the Warhols hanging in her apartment.....the fruits of a really strong copyright claim.


    ----- Original Message ----- From: "Mark Sullivan" <> To: "rara-avis" <> Sent: Sunday, July 25, 2010 18:46 Subject: RE: RARA-AVIS: paperbacks to poster

    Picking up on your Warhol comment, Charles, I know at least one photographer sued Warhol for turning his photo into a silkscreen. And I'm pretty sure Shephard Fairey was sued by, I think, Time Magazine for using one of their cover photos as the basis of his Obama poster. Not sure of the final disposition of either of those cases. Mark

    > To:
    > From:
    > Date: Sun, 25 Jul 2010 13:11:27 +0000
    > Subject: Re: RARA-AVIS: paperbacks to poster
    > 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, "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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