Regular readers of this blog will know that I've done a few library mashups using book cover images to add to the usefulness of services provided by my library. Depending on the task, I've either used a supply of cover art provided by Syndetics (a Bowker company) or cover images provided by Amazon. LibraryThing also has a good sized supply of cover art, though it's a bit trickier to use it wholesale.
For the most part I rationalized using these images either by somehow contriving that the Syndetics ones were OK to use because they were used as part of a view into the Ann Arbor District Library's catalog (and AADL uses them), or because they are within the rules as best I understood them from Amazon. Mostly though these projects were one-offs and not ongoing commercial projects for gain. And I rationalized it because it was, well, fun, and unlikely to get anyone upset.
Mary Minow tackles the question of the legality of the use of cover image art by libraries in the LibraryLaw Blog. She examines the relevant bits of the law - the Fair Use bit of the Copyright Act, and the "useful article" test. Quoting now:
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.
The discussion is more nuanced than I'm able to take in, and I'm reminded by this analysis by Carol Shepherd of the decision in the Harry Potter Lexicon case that fair use has an overwhelmingly complex set of legal nuances, some of which hinge on terms like a "transformative use" which in turn have big swaths of case law behind them where the very particular details of the circumstances are material to the decision. The Stanford Copyright and Fair Use Center notes
So what is a "transformative" use? If this definition seems ambiguous
or vague, be aware that millions of dollars in legal fees have been
spent attempting to define what qualifies as a fair use. There are no
hard-and-fast rules, only general rules and varying court decisions.
That's because the judges and lawmakers who created the fair use
exception did not want to limit the definition of fair use. They wanted
it--like free speech--to have an expansive meaning that could be open
to interpretation.
So who owns the copyright to the cover of a book, and who has the right to use this image to advertise or promote the book or to use it for commentary or criticism? Mary Minow notes that she and Peter Hirtle of Cornell have been looking at this issue for some years and would welcome commentary.
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