Book jackets - can libraries put pictures of book covers on the websites?

Peter Hirtle and I have tried to analyze this over a couple of years and may write an article some day - so readers, feel free to weigh in. Meanwhile, Peter tells me that LJ announced that a million book covers are now available for download and display in library OPACs via LibraryThing.  I expect libraries will be delighted to try this service.

But who actually owns the copyright to the book covers? Likely the book publisher, though it could be an artist who designed the cover.  The question then is whether or not there is an exception in copyright law that allows libraries and others to scan and post images of the covers.

LibraryThing states: "Publishers and authors want libraries and bookstores to show their covers. Under U.S. law showing covers to show off books for sale, rental or commentary falls under Fair Use in most circumstances. (We are not lawyers and make no warrant that your use will be legal.)"

Minow take: I'm not aware of a court case that supports this statement, but readers please add comments if you are.  It seems that Fair Use would need to be evaluated on a case by case basis. Questions should be asked such as: what is the library's purpose in posting the scan? OPAC? Reading program? Posters? How creative is the cover? Did the cover have its own copyright or is it a small part of a much larger copyrighted work (i.e. the book)?

However, there's another copyright exception that could be useful here -- the "useful article" provision at 17 USC 113(c) which states:

In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.

and 17 USC 101 defines "useful article" as:

A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”

Assuming the books are "useful articles" it seems that Sect. 113 is more helpful than Fair Use. It seems that a strong argument can be made that with today's enhanced online catalogs that include book reviews, the commentary criteria is met. For items that do not have reviews attached, there is still a possible argument that the pictures are used to help advertise the book. 

This assumes that "advertise" can be used in a broad, nonprofit sense - to promote checkouts of the book, rather than sales.

Readers' thoughts?

Comments

[Christopher Sirmons Haviland]

I have a related question. What about the back cover copy, where you would often find a synopsis or pitch of the book? What if that wordage is transcribed on the internet?

[joleene naylor]

haha! I recently ran into this issue myself in a blog i wrote promoting a series of books and telling my readers to go buy them! The author sent me nasty messages and comments all over the place informing me i had committed copyright infringement his work (the only "work" i had posted was the cover thumbnails, which came from amazon :p ) and demand I remove it. of course, I did so immediately and posted an apology telling everyone not to read or purchase them after all, LOL!

[Street corner promotion]

To put the picture of the cover on the website is one way of promoting the book..for some private bookstore website, puslishers have to pay for posting their books on website.

[Yvette Kelly]

If this is a problem what about if I take a photo of my own books?If thats not allowed then am I supposed to blur any personal photos I have of myself holding a book?And what about the Amazon affiliate system?You get links to books specifically to put onto your site.This is not making any sense at all.Surely any publicity is good publicity regardless of a bad review or not

[MickeyM]

I'm finding it hard to read this thread without laughing! I work in publishing. Publishers make covers available to Amazon, Neilsen, etc, because they *want* people to see them. It is 'packaging' - a cover is eye-catching and draws attention to the product. Without an image of the cover, a page on Amazon would look very dull. A cover is 'advertising' too - publishers will happily send an image of a cover to anybody if they think it will somehow leverage sales, or make them look good and willing to support their products. Wherever their covers appear is advertising space they haven't paid for. You are inventing a problem here.

[Allegra Gonzalez]

We follow the thumbnail "rule" for our digital collection of author interviews http://ccdl.libraries.claremont.edu/collection.php?alias=cmt as well as our reception for faculty author brochure http://ccdl.libraries.claremont.edu/u?/lea,114 . We believe that the image isn't large enough to use for any other purpose other than driving potential customers to the book.

[rose121]

Faber also commissioned the super talented Canadian typographer Marian Bantjes to create four designs used as templates for the desired look & feel of the borders styles of each of the different genres offered by the imprint. Each of her design routes then needed to be abstracted, decomposed/split into smaller elements & shapes, parametrized and generally reverse engineered conceptually. The shapes would then become micro templates, or rather, form a shape vocabulary for the complex borders. Only once I understood all the rules and nature of the design elements used on all levels, I could start building a generative solution which would introduce variations at certain points of the design process, manage and judge them automatically. This initial part of the process included things like identifying the 5 levels of symmetry used within Marian's sketches, experimenting with minimum and maximum border widths, exploring individual symmetry options & limitations for each of the shape elements below, finding the right density range of shapes used per border quadrant, ensuring author names and titles are correctly word wrapped whilst not obscured by the borders, auto-adjusting the font size for text on the spine based on the number of pages vs. length of text etc. In total we isolated over 35 such rules and parameters…
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rose121

Book jackets - can libraries put pictures of book covers on the websites?

"blog"

[Anna Fernbach]

Can I contact a publishing company and ask for permission to display their book covers?
How does one go about doing something like that? I am an Elementary School Librarian and displaying the book covers near where the books are kept helps the students locate the books. (esp. the students who are just learning the alphabet) Any suggestions?

[Mary]

those factors contribute to fair use, but not essntial in order to find fair use...

[Jill Rooker]

My understanding of Fair Use is that it can be claimed only in a non-profit educational realm, and only as part of an "instructional" use.

[Dan Kleinman]

A library using a book's cover to attract people into a library to read books sounds like a textbook (funny?) case of Fair Use.

[Mary Minow]

Great comments, thanks. The thumbnail aspect is an especially important once since the courts have repeatedly found that to weigh heavily in favor of fair use.

I checked through copyright cases to see if there is more guidance on what constitutes advertising. I found a 2003 case in the 2d Cir., Pollara v. Seymour, 344 F.3d 265 that found an artist's work used as a banner for a nonprofit group on its lobbying day was "advertising" and thus (along with a question of recognized stature) not entitled to the protections that certain visual works get under VARA. VARA is another part of copyright law that gives artists additional protections.

The decision is not perfectly on point, but does lean us towards the possibility of nonprofits using copyrighted works for promotion/advertising.

When the issue comes up for libraries that are digitizing local history photos, I tend to point out that the right of publicity should be considered along with copyright concerns. That is, don't use a celebrity's image, even if you have copyright clearance, to sell book bags and mugs without permission from the celebrity or agent. Scanning the image for a noncommercial use doesn't generally infringe publicity rights.

Can we determine that scans of book jackets for a library's online catalog is advertising, whereas scans of local photos for a digitization project are not? I think so - the local history photos scans are an end in themselves, not part of a useful article. The book covers, on the other hand, promote an item - the book. It may become murkier when the scanned photo image is used to promote the digitization project itself.

From the court case about the artist's banner as advertising/promotion: "The undisputed facts demonstrate that Pollara's banner falls outside the protections of the Act. The banner was created for the purpose of drawing attention to an information desk, as part of a lobbying effort, and the banner overtly promotes in word and picture a lobbying message... the directions given by Gideon evidence the promotional and advertising purpose that bring the banner outside the scope of VARA. While Gideon's name did not appear on the banner, the banner's planned installation adjacent to Gideon's information table, and its explicit lobbying message leave no doubt as to the banner's purpose as promotional and advertising material for Gideon's lobbying effort."

http://bulk.resource.org/courts.gov/c/F3/344/344.F3d.265.02-7733.html

p.s. about the cake - I do see a problem if a commercial bakery sells cakes with copyrighted images without compensating the copyright owners. Not the same as if you make it yourself...

[Joe Atzberger]

Library OPACs certainly qualify as "advertising" for our purposes here. Incidentally, if you are using Amazon images in accordance with their usage agreement, then you are linking to Amazon where the item will be for sale anyway: this would recognizable as advertising in the "widgets-for-sale" classical sense. But more broadly, libraries provide a service. That service is the availability of books and other resources. Anything done to promote awareness and use of the service is advertising.

However, my reading of "useful article" provisions varies from the original post. To me, it boils down to "If it is OK to use *in* the article, then it's OK to use outside it in promotion/commentary regarding the article." But take the case of an author-illustrated cover and it would be hard to argue that the cover constitutes a separate work "lawfully reproduced" by the book. Surely courts would rather hold that cover to be part of the same work. In particular if the author-illustrated cover exists nowhere else in the world, it cannot possibly be a "reproduction".

Of course, I am still all for jacket images in OPACs. Let the publisher argue that their copyright (of the cover design or the book as a whole) is being infringed by the OPAC thumbnail.

[Rachel Kamin]

In celebration of the 40th anniversary of Corduroy by Don Freeman, we are having a birthday party for Corduroy at our public library. I wanted to order a photo cake from the local grocery store bakery (you bring in a photograph and they print it onto the cake) using the book jacket image. The bakery refused to do it because they said it was a violation of copyright and licensing. What do you think? Doesn't that seem a little ridiculous?

[Trevor Reynolds]

From my experience with non-profit publishers, Amazon, Backwells and probably others get at least some (and I expect most, if not all) of their cover scans from Bowkers (US) of Neilsen's (UK). Both allow publishers to upload covers along with in-print info there is a licence involved but no money passes in either direction between the publisher and Bowkers/Neilsen.
In the UK promotion of Local Government and non-profit services does count as advertising.

[Peter Hirtle]

Without some more research, I would be a little uncomfortable suggesting that display in a catalog was "advertising" and hence eligible for 17 USC 113(c) protections. I have always assumed that advertising was associated with commerce and the exemption exists to allow 3rd parties to sell items easily. A library, however, is not selling its books. So how can a library display be advertising?

The issue of whether using covers is a fair use or not is the reason Mary and I want to do an article on the topic. There have been cases like Perfect 10 and Bill Graham Archives v DK books that suggest that using thumbnail versions of copyrighted works in new ways (i.e, for a visual catalog or to illustrate a timeline) is a fair use. Whether using covers in a catalog is a transformative use, however, is far from clear. And the fact that there is a market for licensing book covers might argue against a finding of fair use.

Mostly, though, I think that Jonathan Rochkind has hit on the key element - how likely it is that publishers will actually go after libraries (or more likely, LibraryThing) and seek damages. Tim Spalding should be congratulated for concluding that the risks seem low and going ahead with something that will prove to be useful.

[Jonathan Rochkind]

Thanks for the useful post.

Here is one case about covers, but I'm not sure it looks good for fair use:

Perfect 10 v. Google, Inc., et al., 416 F. Supp. 2d 828 (C.D. Cal. 2006),

http://www.eff.org/cases/perfect-10-v-google

The facts aren't quite the same of course.

Another case with even different facts about search engines and fair use:

Field v. Google, Inc., 412 F. Supp 2d. 1106 (D. Nev. 2006)

The facts in that one potentially rely on robots.txt being present to prevent search engines. On the one hand, a library catalog is very much like a 'search engine', but on the other hand the facts of where we are getting our textual excerpts or thumbnails is pretty different.

As far as "publishers going after libraries before they go after amazon google etc"--I am actually fairly certain that both Amazon and Google license their book covers from vendors (who also do the work of assembling the covers; and who license the use from publishers), they do not gather them themselves without a license and hope it's fair use.

It still seems like a reasonable risk to take, to me, to show covers, based on the probability that publishers won't mind (or if they do, that we can find a way to remove that publishers covers after a C&D, with no further consequences); and the chances of it being considered fair use (but then, libraries are risk averse enough not to want to go to court even if their chances of winning are high; this sadly makes libraries rather the prisoners of other businesses with no such fear). But yeah, i'd do it, but I'm not a library director or library counsel, I'm afraid.

[John Miedema]

If I only display a cover as a thumbnail, does it matter whether or not the publisher gives permission? My understanding is that thumbnails work like quotes, i.e., it is legal to copy a partial representation of the original.

[Dr. Klaus Graf]

According German law covers can only be shown for sale purposes (see BGH Parfumflakon). There is a 2 years agreement that German libraries can show covers in their OPAC:
http://www.lfs.bsb-muenchen.de/meldungen/detail.jsp?intID=40000135

[Tim Spalding]

It might also help to look at another aspect.

If the use is questionable, are publishers really going to go after a *library*, as opposed to every other service online that uses book covers?

Unless I am quite mistaken, Amazon does not have agreements with every publisher it shows covers for. They may get some of them from ONIX feed with posted rules, and even have explicit agreements for some, but most? My contacts in publishing doubt this. Maybe we can scare some small presses up to confirm it.

Meanwhile, what about all their user-submitted covers? What about similar covers on Google? On used book sites? On eBay? On author sites?

It strikes me that two things are true:

1. Everyone is relying on Fair Use or Sect. 113 (which I had thought was included in Fair Use; thanks for the clarification).

2. Librarians who think publishers are going to go after them for book covers before they go after Amazon, Google and others are people I want to play poker against, for sure!