Are images of book covers usable without permission?

[Timothy Perper]

== Are book covers usable without getting permission? ==

In the standard print publishing arenas that I know, the answer is Yes -- they can be reprinted (if unchanged) without getting permission in writing from the original publisher. Is this also the case on CZ or are written permissions needed? I figured out (I think) how to use Upload Wizard to upload images, but I am very leery of copyright issues for images, given how much of the Internet simply steals images all over the place. Can anyone help? Thanks. ~~~~

[Hayford Peirce]

This was/is a tremendous can of worms over at WP that was argued about passionately for a long, long time. Some very knowledgeable people wrote long "fair use" justifications and uploaded hundreds of cover images, me included. Then other people wrote bots and removed most, although, I think, not *all* of them, for reasons that elude me.

When I came to CZ in May of 2007 I used to discuss this with our resident expert Steve Ewen -- he was of two different minds about it and, I fear, never really came to an absolutely concrete conclusion that could be used in any cases.  So I myself just gave up thinking about it.

I sure wish, however, that someone like you would ramp up this question again and try to get a definitive ruling.

I think, by the way, that WP is now allowing a number of covers, with an incredibly long "fair use" justification that is somewhat different from the old one and that (maybe) involves specifying that the reproduced image is of very low quality and could not be used for any other purposes.  You might want to check with our pals over there....

I myself have several dozen cover images that are ready to inserted here and there....

[Martin Baldwin-Edwards]

I think that the answer is that nobody knows, since there is no case law and no strong legislative basis. Even with caselaw from the USA, it would only be valid within US law. The safest course always is to ask for permission from the copyright holder, rather than insisting that you know the decision that a court would reach under the "fair rights" provisions.

[Timothy Perper]

I guess I'm not surprised. I don't think it's worthwhile trying to get permission for covers -- if I'm going to get permission, it will be for images inside the books. But anyway thanks for the help.

[Hayford Peirce]

The safest course always is to ask for permission from the copyright holder, rather than insisting that you know the decision that a court would reach under the "fair rights" provisions.

A lot of work, and then no one ever bothers to answer you.  Which is why I gave up.

[Hayford Peirce]

Hi, Thomas,

A belated welcome aboard!

To conform to our rules for participants in these Forums, would you kindly go to the little tab in the middle of the page that says Profile, then scroll on down to the bottom of the screen and where it says Signature, put in something more or less like:

My CZ user page: http://en.citizendium.org/wiki/User:Your_CZName

This will enable your profile to be easily viewed by anyone who reads one of your messages here in the Forums. And thereby enables us, up to a point, at least, to make some sort of initial judgment about how much credence/deference/respect/belief/etc./etc. to give to anything you happen to post....

Thanks!

Hayford

[George Swan]

This was/is a tremendous can of worms over at WP that was argued about passionately for a long, long time. Some very knowledgeable people wrote long "fair use" justifications and uploaded hundreds of cover images, me included. Then other people wrote bots and removed most, although, I think, not *all* of them, for reasons that elude me.

I won't claim to be an expert on copyright.  But I am going to offer some thoughts anyway.  :-)

In my opinion intellectual property rights are very important.  I think our intellectual property protections are in desperate need of reform -- for technological reasons.  But I think that those who make up their own rules because the existing rules seem so broke commit a big mistake.

The Severe Acute Respiratory Syndrome (SARS) struck hard in Canada.  Forty-four individuals eventually died of this new mysterious disease.  Hundreds were hospitalized, and seemed at risk of dying.

And while it was striking Canada one aspect of the struggle to control the outbreak reminded me of the basic reason we grant intellectual property rights to artists, writers and inventors.

SARS was poorly understood.  Many of the health care workers treating the patients were coming down with the disease themselves.  And there was only one drug believed to have a prophylactic effect. 

Canada's Minister of Health thought it was necessary to try to lay in enough doses of the prophylactic drug to administer it to all the health care workers, who might come in contact with infected individuals, so they didn't get sick themselves, and so they didn't pass the disease on to other patients.  He contacted the Drug company that owned the intellectual property rights to that drug in Canada.  And he was told the company was going to withhold its stockpile, to use if the disease struck the USA as seriously as it struck Canada.

So he contacted some drug other companies, that didn't own the rights to market that drug, and asked them if they could manufacture the required doses.

It took a few days for the original drug company to react to his plans.  When they did their reaction was outrage.  Their intellectual property rights were being trampled!

But we grant patents to inventors because it is in the public interest.  The exclusive right to exploit a patent is supposed to allow the inventor to make money to pay for the costs of developing the invention, and maybe invent new things that would benefit the public.  Patents should be in the public interest.  And I think that this was a case where the patent protection the drug company was claiming, which was going to lead to many deaths, was clearly not in the public interest.  I believe the Minister of Health was justified to ignore the rights of the original drug company.

It is important, when thinking about reforming how we handle intellectual property rights, to remember why we grant them in the first place.  It is supposed to be in the public interest to do so.

I am going to post some further comments about:

* The Musical-Industrial-Complex and the half-life of a book

* Research in Motion's big patent fight over the Blackberry...

* Desktop publishing -- an example of a new idea that was basically inevitable...

* Richard Feynman's story on the absurdity of awarding patents

[George Swan]

I promised more comments about:

* Just-in-time publishing, and the suggestion copyright should expire when a work is allowed to fall out of print.

In the days before the internet there was a valid reason why artists needed to rely on distribution companies to get their artistic work out to where the listening public could appreciate it and buy it.  For various reasons that Musical-Industrial-Complex soaked up almost all the revenue, allowing only a tiny fraction to dribble down to the artists.  Sadly, the unequal contracts most struggling artists sign with the Musical-Industrial-Complex meant that only the very most successful artists got rich, or even ended up breaking even.  The fine print of those contracts said that the distribution companies were merely loaning the artists the costs to produce and distribute their sheet music, records, tapes and CDs.  Successful Canadian singer Sarah McClaughlin's accountant told her she didn't break even until her 3rd or 4th album.  Successful American singer Toni Braxton declared personal bankruptcy rather than remain contractually obligated to pay back the millions her contracts said she owed her distributors.

When automobiles replaced buggies it must have caused terrific dislocation in the buggy whip industry.  That's tough.  I had a job I enjoyed, and I was good at, become technological redundant.  If lobbyists for the buggy whip industry had lobbied for every new car to come equipped with a buggy whip legislators should have refused.

Fifteen or twenty years ago I read a document by a guy with a Project Gutenberg.  He wrote about the feedback he got from Librarians, and how it affected his views of copyright.  From his feedback from Librarians he learned most new books rapidly fall out of print, and become unavailable.  The half-life of a newly published book was five years.  It might be even shorter now.

This represents a heart-breaking loss of intellectual value.  All the effort of those author, lost, and unavailable for the use of the rest of mankind, for something like a hundred years.

I can't remember now whether this was his suggestion, but I came away from reading his article with the idea that for a copyright to remain in effect the artistic work should remain in print.  With "just-in-time" publishers this can be done for basically no cost to the artist.  If the artist, or whoever they sold the copyright to, allows the work to go out of print, for all but a short period of time, then that work would go into the public domain.

You probably all know the story of the now well-loved Frank Capra movie, "It is a Wonderful Life".  It had been a kind of orphan.  The rule was, back when it was produced, that movie companies had to file renewals of the copyrights on the films in their archives, periodically.  Every 25 years if I recall correctly.  And movie companies routinely didn't bother for a large number of their films that they didn't anticipate were worth renewing.  It is a Wonderful Life was merely one of dozens whose copyright wasn't renewed that year.  Local TV stations started playing it at Christmas because, since it was in the public domain, they didn't have to pay any royalties.  The new TV audiences found real value in the film that hadn't been appreciated during its theatrical release. 

Regarding "just-in-time" publishers -- there is an outfit called Cafe Press, that does just-in-time publishing.  They started off just doing things like T-shirts, Calendars, fridge-magnets and protest buttons.  You would upload some images you owned to your "online store", and then send visitors to your personal home page there to buy your products.  The company handled everything else.  They maintained the servers with the catalog of the products.  They handled the credit card billing when someone chose to buy a T-shirt with your image.  They took a blank T-shirt from their warehouse, printed your image on it, and mailed it to your customer.  And they mailed you a check, when your share of your sales topped $25.

About eight years ago they branched out into just-in-time publishing of books and CDs.  You'd upload the image of what you wanted on the cover, and the .ISO of the CD, or the PDF of the book, and interested readers or listeners could order a brand new physical copy to be delivered to them.

The existing Musical-Industrial-Complex chooses to market the heck out of the work of a few hundred artists, and ignore the works of everyone else.  Well, why the heck shouldn't we be listening to relatively unknown, or completely unknown artists.  Many of the hundreds of thousands of unknown artists are just as talented as those few hundred the shallow execs in the Musical-Industrial-Complex.  Some of them are much more talented than the couple of hundred the Musical-Industrial-Complex chooses to market.

I suggest that it would be in the public interest for legislators did not aid the Musical-Industrial-Complex to fight the technological tide, and preserve their gatekeeper role in mediating which artists were able to find an audience.

Hayford, you are a published author.  If the contract with your original publishers allowed you upload the image of your books for just-in-time publishing, would you want to do so?

How many of your books have fallen out of print?  Do you regret that interested readers can no longer acquire a copy?  Are your original publishers all still in business?  Do you still have physical copies of your original contracts? 

[Hayford Peirce]

Hayford, you are a published author.  If the contract with your original publishers allowed you upload the image of your books for just-in-time publishing, would you want to do so?

How many of your books have fallen out of print?  Do you regret that interested readers can no longer acquire a copy?  Are your original publishers all still in business?  Do you still have physical copies of your original contracts? 

So many questions, so little time, hehe....

1.) I originally published three books with a well-known American publisher, Tor Books. There were also foreign editions. This was the standard, old-fashioned way of publishing. They paid me so much money, printed 50,000 copies, say, distributed them, sold some, paid me some royalties or not.  After two or three years, I forget which, when the books were no longer officially "in print", their rights reverted to me, 100%.  I now owned all rights to each book.

2.) Some years later, a well-known small press named Wildside contacted me and obtained the rights for *all* of my previous writings, published as books, published as stories in magazines, or unpublished.  I spent several years editing these works and they eventually appeared, over the course of several years, as the 18 books that I theoretically have in stock at Amazon.

3.) All of these books (or at least most of them, I think) were published only as "print on demand (POD)" books, apparently what you are calling "just in time" books.  If someone ordered one of these books from Amazon, or any other source (and there are other sources, of course), some publishing company, I believe, Tennessee, prints up the book. After that, I don't know the details -- one way or another it is sent to the person who ordered it. (Some of them were also available as downloads, I believe -- I can't remember whether we ever sold any or not.)

4.) For all 18 of these books I did not receive any money in advance, as I had from Tor.  I had a royalty contract in which I received, twice a year, a certain percentage of the sales of each book.

5.) I just learned a few days ago that Wildside is no longer selling enough of my books to make it worth the small annual fee they pay to someone (the publisher in Tennessee, I guess) to keep my books available.  So they will be removing them from their catalog.  Which, I suppose, means that they will vanish from Amazon, although I myself will still be able to order copies directly from Wildside.

6.) I assume that by removing my books from their catalog, that means that all rights to these works will once again revert to me.  I have asked the publisher about this but haven't heard from him yet.

7.) So, to answer some of your questions more directly,

A.) Yes, I would and did allow people to upload (electronically in some cases) my works. I don't care what format they're in as long as I get paid.

B.) I'm sorry that they are no longer in print, because that means I don't get paid anything from time to time.

C.) Both publishers are still in business -- each is the largest and most important in its own field.

D.) I do indeed have physical copies of all my contracts dating back to the 1980s, I imagine.

[George Swan]

I promised more comments about:

* Research in Motion's big patent fight over the Blackberry...

Research in Motion was a small company, in the small college town of Waterloo, Ontario, Canada, which started marketing what was then an unique product.

Their original product was a device the size of a conventional pager that allowed the owner to send and receive emails wirelessly, everywhere they could receive a conventional page, or cell phone call.  Their original product only had a screen big enough to hold a couple of short lines of text.  But it was enough to make their initial product very successful. 

After they were successful an American company sued them, in the USA, for patent infringement. 

As I wrote in my earlier message, patents and other kinds of intellectual property right protection are, at the most basic level, supposed to enhance the public interest.  And perhaps I don't understand the merits of the American companies claims, but it really seems to me that their suit was not in the public interest.

As written about up here in Canada, the American company had some vaguely worded patents on the general idea of transmitting email wirelessly.  These patents offered no details that would be helpful to anyone trying to actually implement the general idea they described.

So, in this particular case, patent law wasn't aiding the hard-working inventors, who incurred the substantial development costs.  In this particular case patent law merely benefited the intellectual property equivalent of squatters -- and their lawyers.  US courts ruled against the Canadian company after years-long, public legal struggles.  RIM had to pay hundreds of millions of dollars.

Wily commentators kept writing that the executives at RIM should have privately negotiated a settlement early, that at each milestone in the protracted legal battle, it was still in RIM's economic interest to reach a private settlement, rather than wait for a public judgment, that was likely to go against them.  The uncertainty was bad for RIM's sales, and the value of its stock, etc.

Maybe RIM's directors knew all this, and chose to stand on principle.


There is something deeply broken about the awarding of patents.  Those granting patents frequently award them to the wrong parties.  There are the notoriously frivolous cases.  Someone was granted a patent on the technique of using a laser pointer to exercise one's cat.  A patent lawyer showed his son he could get a patent for the technique of getting exercise by swinging back and forth on a swing.

More seriously, big firms claimed patent rights for being the first to file patents for ideas and algorithms that had been in widespread use for years.  There is a compression algorithm that had been published in the academic press, and used in a variety of applications.  Years after it was already in widespread use a large company tried to take out a patent on the algorithm.  Shamefully the US Patent Office granted that patent. 

The ".gif" file format used that compression algorithm.  Suddenly, overnight, that big firm tried to throw its weight around where and when .gif files could be used.

Over in India international Pharmaceutical-Industrial-Complex and the Agricultural-Industrial-Complex have been trying to patent the genomes of herbs and other traditional medicines that have been in widespread use for centuries.

Granting the patent on the algorithm already in widespread use in the .gif and elsewhere was definitely not in the public interest.  And I don't think granting patents on genes is either.

Returning to my original point, our existing laws on the protection of intellectual property are deeply broken, no longer serve the public interest.

Cheers!

[Chris Day]

But we grant patents to inventors because it is in the public interest.  The exclusive right to exploit a patent is supposed to allow the inventor to make money to pay for the costs of developing the invention, and maybe invent new things that would benefit the public.  Patents should be in the public interest.  And I think that this was a case where the patent protection the drug company was claiming, which was going to lead to many deaths, was clearly not in the public interest. 

As a side note. The USDA had a big effort to patent as much of their basic research as possible, especially genes that might be important for crop improvement etc. The goal was that the patents would be owned by the public and all companies would be able to use the technology for the public good.

This strategy backfired as no companies wanted to use a patent that other companies could use too. The focus of their research turned to trying to find alternative sttategies to get around the USADA patents.  Now the USDA negotiates exclusive licenses with the individual companies otherwise the new technology does not get used for the public good.

[George Swan]

I promised to write about:

* Desktop publishing -- an example of a new idea that was basically inevitable...

There are some ideas that seem inevitable, and obvious now, but haven't always been obvious.  What seems obvious depends on the culture and technology we are surrounded by and take for granted.

I was involved in a start-up company, in the early 1980s, that incorporated to write what was to soon be called "desktop publishing" software.  That term hadn't been invented then.  I was involved at a point where the idea wasn't generally obvious at all.  We didn't know of anyone else working on this idea.  As it turned out the idea occurred independently, to a number of teams, who were all unaware of one another.

That firm I was involved with experienced some startup delays, and didn't end up working on "desptop publishing software", but ended up a successful enterprise anyhow, after I left, for other projects that had nothing to do with desktop publishing.

I congratulate the first teams to bring products that allowed regular users to easily practice typography on affordable computers.  Being there at the beginning I know that the idea wasn't always obvious, even if it seems obvious now.  And I hope they too weren't pestered by intellectual property squatters, trying to cash in on their practical implementation.

Returning to my original point, our existing laws on the protection of intellectual property are deeply broken, no longer serve the public interest.

Cheers!

[George Swan]

I promised to write about:

* Richard Feynman's story on the absurdity of awarding patents

One of the chapters in the great Richard Feynman's book, "Surely you are joking Mr Feynman", concerns the curious events around some patents he was named on.

Feynman was one of the physicists at Los Alamos, working on the theoretical aspects of developing atomic weapons, during the Manhattan Project.  He describes a new Army officer visiting everyone's labs, to tell them they should all come see him, and tell him all the new ideas that were occuring to them that could arise from the use of Nuclear energy, and he would then write up secret patent applications, which they would sign, assigning the patents to their ideas to the US government.

According to Feynman's account the Army officer told the scientists that the ideas they thought were obvious, were not in fact obvious.  And I agree with him there.  Feynman describes coming up with some snappy examples of obvious applications of Nuclear energy too obvious to patent: Nuclear powered submarines, where water would be heated when it flowed through an atomic pile, and then drive a turbine to power the sub; or air heated by flowing through an atomic pile, to make an atomic plane -- and a couple of others.

Feynman described being called to the officer's office a few days later, to find the officer had drawn up patent applications for some of the ideas Feynman had spontaneously spun off, off the top of his head.  Someone else had already applied for the patent on atom-powered subs, but Feynman could file the applications he had prepared on his behalf for the atom-powered plane.

Feynman began that chapter by describing a mysterious call he got sometime in the 1950s, from an executive at an aeronautical firm, who insisted Feynman listen to the important details about a huge aeronautical research lab his firm was setting up -- how many PhDs, and technicians would be under the direction of its director, the size of its budget.  When the executive finishes, Feynman repeats his question, why did the exec think it was important to tell him about this lab?  But, Dr. Feynman!  Your name is on the very first patent in the field of applying atomic power to aeronautics!  We want you to be the big lab's director!


Returning to my original point, our existing laws on the protection of intellectual property are deeply broken, no longer serve the public interest.

Cheers!

[Howard C. Berkowitz]

I promised more comments about:

* Research in Motion's big patent fight over the Blackberry...

As I wrote in my earlier message, patents and other kinds of intellectual property right protection are, at the most basic level, supposed to enhance the public interest.  And perhaps I don't understand the merits of the American companies claims, but it really seems to me that their suit was not in the public interest.
...

So, in this particular case, patent law wasn't aiding the hard-working inventors, who incurred the substantial development costs.  In this particular case patent law merely benefited the intellectual property equivalent of squatters -- and their lawyers.  US courts ruled against the Canadian company after years-long, public legal struggles.  RIM had to pay hundreds of millions of dollars.

...

There is something deeply broken about the awarding of patents.  Those granting patents frequently award them to the wrong parties. ...

More seriously, big firms claimed patent rights for being the first to file patents for ideas and algorithms that had been in widespread use for years.  There is a compression algorithm that had been published in the academic press, and used in a variety of applications.  Years after it was already in widespread use a large company tried to take out a patent on the algorithm.  Shamefully the US Patent Office granted that patent. 

...

Granting the patent on the algorithm already in widespread use in the .gif and elsewhere was definitely not in the public interest.  And I don't think granting patents on genes is either.

Returning to my original point, our existing laws on the protection of intellectual property are deeply broken, no longer serve the public interest.

Cheers!

It would be useful to have some articles describing some of the practices in patent law. My perspective is from fairly recent experience with the system in the U.S. There is a potentially small-inventor-friendly new feature called the "provisional patent", which is good for a year, is understood to be for the early phase of a concept and to give the inventor some protection while seeking funding. My name, among others is on two such applications, which our patent attorney would not approve -- and, as a consequence, our venture capitalists cut off finding,  because they demanded intellectual property protection.

The topics deal with novel ways of delivering certain healthcare applications, a large part of the originality being not the IETF-standard protocols that they use, but the way in which the communications component is applied to the application, essentially allowing users and services to be anywhere that can have connectivity to a standard IP network, public or private. The closest prior art was both limited in the flexibility of the medical part, but also in the connectivity. Essentially, the techniques in the existing patent used 1970s technology that restricted the application from a wider scope than a relatively short, hardwired distance -- perhaps a ward or floor in a hospital.

Unfortunately, the prior art used the word "packet" as the unit of transmission, rather than the more appropriate "frame". In no way could that system have run over the Internet or a virtual private network. As is standard in patents, according to the attorney, the specific communications implementation was very detailed, indeed citing specific commercial integrated circuits, and was really 1970s technology. The key words, however, were saying that the application could use the specific communication technique, or, if I remember the standard patent phrase, "other variants that would be obvious to one skilled in the art."  Because the word "packet" was used, apparently, IP-based routed networks were considered "obvious", and our attorney's opinion is that we would be held to be infringing.

He added that whether it was unreasonable or not, once a U.S. patent had been issued, the burden of proof that a newer method was not an "obvious" variant of the method in that patent was on the new applicant. Further, he said, that while the Patent Office did have some technical knowledge, the process really did not apply expertise. Using himself as an example, his undergraduate training was as a mechanical engineer, followed by law school. He asked us to think of the people who would rule on a communications and software engineering (with significant medical components) as having a technical depth comparable to his own; explaining that what we were doing was "not obvious" would probably not be accepted. It would be necessary to go to full litigation, with expert witnesses, to disprove that ours was an obvious derivative.

Ironically, the patent is from a very respected and generally ethical large corporation, but, as our attorney said, probably had an in-house legal department that took every new development from engineering and would try to use it to create a patent that would cover as much as possible. Their patent, indeed, dealt with a subsystem of a major product line quite different from ours.

[George Swan]

So many questions, so little time, hehe....

I originally published three books with a well-known American publisher, Tor Books... when the books were no longer officially "in print", their rights reverted to me, 100%.  I now owned all rights to each book.

Some years later, a well-known small press named Wildside contacted me and obtained the rights for *all* of my previous writings ... published only as "print on demand (POD)" ... ordered online.

I just learned a few days ago that Wildside is no longer selling enough of my books to make it worth the small annual fee they pay to someone (the publisher in Tennessee, I guess) to keep my books available.  So they will be removing them from their catalog.  Which, I suppose, means that they will vanish from Amazon, although I myself will still be able to order copies directly from Wildside.

I assume that by removing my books from their catalog, that means that all rights to these works will once again revert to me.  I have asked the publisher about this but haven't heard from him yet...

I'm sorry that they are no longer in print, because that means I don't get paid anything from time to time.

I do indeed have physical copies of all my contracts dating back to the 1980s, I imagine.

That is interesting.  Thanks!

Congratulations for having a contract that said all rights revert to you if the book falls out of print.

I just checked.  Cafe Press's base price for a book surprised me by its reasonableness.  Just $4 per copy!