Boy, are you in trouble!
But first, a disclaimer. I am not a legal expert, and if you are in any doubt about the subjects I’m talking about, you should consult an authoritative source.
In general, as most writers are aware, the maker of an artistic work (e.g. painting, novel, photograph, concerto) automatically owns the copyright to said work. Selling the work does not constitute selling the copyright. This is an issue that occasionally confuses writers, for example, but it is worth remembering that even if a publisher agrees to publish your new novel, you retain the ownership and copyright to that novel, unless you specifically sign them away.
This means that the painter of a picture may sell the picture, but the new owner has no right to make any copy of this work for any purpose, and the artist retains the right to do so. Again, if the new owner is to have the right to make a copy of the picture and publish it, the artist must specifically assign the new owner the right to do so. After all, purchasing a novel or a music CD does not confer the right to copy and sell either of those.
But it’s not all as straightforward as that, and it’s more complicated if an artist has been specifically paid to create it for a purpose, or creates it as part of their duties for an employer. In this case, the employer / commissioner may hold the copyright.
As an example of this, my novel Making Friends with the Crocodile features an image from one of my paintings on the cover (see picture on the right). I sold the painting many years ago, but the image still belongs to me as I did not sign it away.
Therefore if you wish to use an image on the cover of your book that does not belong to you, you must obtain written permission from the copyright holder to do so. If so, then what you will almost certainly get / buy are reproduction rights and NOT the copyright. That would give you the right to use the image for certain purposes (e.g. book cover) but the artist retains the right to sell the reproduction rights to others, too.
Unless they are exclusive reproduction rights. See? I told you this could get complicated.
It is possible to take (another) artist’s work and sufficiently transform it so that it becomes a new work, but again the devil is in the detail (quite literally). There have been a number of cases where artists have taken others to court to argue the point – and the point is whether the new work is sufficient transformative to be considered a new work. As an example, a photograph downloaded from the internet and then either just being subject to colour changes, or having another image added to it, was considered to be infringing the original copyright.
But there have been other cases where the original image has been altered sufficiently to be considered a new work. If you are intending to go down this route, you would be wise to acquaint yourself with the ins and outs of this. To get a more detailed analysis, you might find this link useful: February 13th Creative
And if you have paid someone for an image for your cover? It might be someone you know, or it might be over the internet (perhaps one of these ‘get a service for five dollars’ sites), but the law doesn’t change. Ensure you have the appropriate permission, preferably signed, before pressing the ‘publish’ button with their image on your cover.
It could save you an awful lot of hassle.
Mick Canning 
Mick, terrific advice in what can be a confusing area. I am discussing the issue of copyright etc with an illustrator at the moment for my latest book and it has been a steep learning curve for us both!
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In some ways it’s largely common sense – if you don’t own an image, why would you be allowed to profit from it? And if you want to use it, you need permission. But it does get complicated, and there are a lot of litigious people out there.
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Legal subject is complicated. he law varies from state to state. But I guess there are some fundamental things that never changes.
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This is true. If those fundamentals differed from country to country, it would be a nightmare to control or police. It’s in everybody’s interest for them to be uniform.
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Let’s hope it gets better for all the artists.
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It gets even more murky when an blogger/author uses “free” or “public domain” or “open source” images. I would also caution bloggers/authors to be careful about copying images from the internet, so that they don’t get tangled up in the Getty Image Extortion Scam.
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Absolutely. Read the small print on those ‘free’ images. And never assume you can copy an image and use it yourself without checking who owns it.
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So complex isn’t it? Unless you can actually design and create brand new artwork you have to be very careful when using pieces owned by someone else. A minefield .
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It is. There’s a lot to be said for being able to use your own images.
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I agree, the simplest way is to use your own images. Not being the least bit talented artistically, I’d have to stick to photos!
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Photos are good, Ann!
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This is definitely a slippery slope that even the lawyers tend to disagree on completely.
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Best to play it safe, I think.
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At one point I looked up WordPress’s suggestions for getting images to use on websites. They suggested a few sources, I think Creative Commons was one. Just the same, think I’ll focus on my own stuff…
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Creative Commons I’ve looked at, but not investigated fully. But even then, I suspect you need to be careful. Probably fine for things like blogs, but book covers might be another matter.
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What sparked this blog post? Did this happen to you or someone you know or is this just an informative post? I was really nervous about pictures in my book, which comes out in February of this year that besides the cover, I abandoned the idea of images in the book. It was too risky!
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Just informative. I used an image of my own on the cover of my book, so it wasn’t an issue. It can be a bit of a minefield, though.
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Thanks for this helpful post, Mick.
My 2 most recent collections of poetry have both used photographs, taken by a friend, of 2 clocks I own so I am, I feel sure safe there!
A friend did suggest that my most recent book would benefit from having pictures to augment my poems. I was tempted, however It would have entailed the taking of photographs as I wwouldn’t wish to find myself in hot water due to accidentally using an image belonging to someone else.
While I in no way condone using other people’s photographs, I do think that its wrong to go after those who reblog articles which (unbeknown to the reblogger) contain photographs which are not the property of the poster of the original article. By all means go after the infringer, but not the person who, out of the best of motives shared the original post.
Best – Kevin
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Thanks, Kevin. yes, I think it would be wrong, but technically it would be an infringement and I’m sure there are a number of litigious people out there who would go after them, especially if they thought they could make some money out of it.
And, yes, the safest way is always to use your own images if you are publishing something yourself (or ensure the appropriate pieces of paper are all signed!). Obviously, if you are fortunate enough to be published by a publishing house, that is for them to get right or get into trouble over.
.
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