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Steve B
01-22-2009, 07:57 PM
I'd like to use a famous person's image for a promotion where I will be giving away a copy of the book they wrote. Their image is readily available on the internet since they are a public figure.

What are the rules about using the person's image for this purpose?

I'm sure it's not this simple, but since I'm going to be helping promote their book and I'll be buying several copies because of this promotion do I need their permission?

Or, can I buy a copy of the book and just take a picture of it? Now, I'm using an image of something I own.

vangogh
01-22-2009, 09:29 PM
I know there's something called 'fair use' which does allow you to use otherwise copyrighted material, but I'm not sure how it applies here. Most definitions of fair use always sound murky to me.

Your best bet is asking for permission, but otherwise I think you need to see if 'fair use' applies.

Of course it's better to get a second opinion than trusting me for legal advice.

billbenson
01-22-2009, 09:47 PM
If you take an image off the internet without permission, its a copyright violation to the best of my knowledge. Having said that, is it something that someone is going to come after you for if you are promoting their product? I copy images from the manufacturers website for products I sell all day long. They don't care but it is a copyright violation.

Every post I've seen where someone didn't like it, they just got a cease and desist. I've never heard of someone actually getting sued unless it was inflammatory. So there is a practical side as well. Are they likely to care or do something? I'd still try to contact them first, but if there is no response, the way you describe it I'd probably use it.

Business Attorney
01-23-2009, 12:03 AM
vangogh (and for clarity its a good thing I don't call him Steve) is quite right in saying that fair use is a murky area. You are probably OK to use a copy of the book, but it is not because you own the image of the book (you don't). From the way you present the book in the ad, you should make it clear that the author of the book is not endorsing your program. That doesn't necessarily mean you actually need a disclaimer, depending on how everything comes across.

As for using the person's photo, even famous people have the right to protect their image from commercial exploitation. In this case, he/she probably would not care, since you are using the photo in conjunction with his or her own book. However, just because the person is famous and wrote a book does not generally make his or her picture fair game. And unlike copyright, the rights of privacy and rights of publicity, have no fair use exceptions.

The rights of privacy and rights of publicity are state-created rights, so they vary considerably between the states.

For more detail, you can see Privacy and Publicity Rights (http://www.illinoisbusinessattorney.com/articles/privacy_rights.html), an article on my website adapted from something I found on the website of the Library of Congress.

vangogh
01-23-2009, 12:25 AM
David from what I can tell about 'fair use' there's no good definition of what is or isn't fair. What I as the user of an image consider fair, you as the creator or owner of that image see as unfair.

The internet makes it more difficult since even if there were a solid definition it's harder to prosecute given the different countries and different laws that would be involved.

Business Attorney
01-23-2009, 01:26 AM
It is true, to some extent, that fair use is in the eyes of the beholder. There are, however, some instances where people would generally agree that a use is a fair use. For example, a book review can repeat word-for-word a few short passages from a book without any fear that the writer of the review is violating the author's copyright.

I think that generally it will be much tougher to justify fair use of photos. They are seldom used to critique the photo itself, which would be a reasonably easy case, like the book review. More often, they are used for purely illustrative or decorative purposes (to make an article more visually appealing rather than reallly make a point). That is not generally fair use, at least in the legal sense.

A common example is using movie stills to illustrate an article about a movie. Since the studios distribute the photos for that very purpose, clearly there is an implied license to use the stills in that manner. But since the articles rarely mention the accompanying photo in the text, and certainly don't critique the photo itself, I would conclude that the use is not "fair use."

When it comes to photos, unless they are clearly in the public domain or are released under a license that covers the use you contemplate, I think that the safe thing to do is obtain permission. However, as noted by Bill Benson above, in most cases the worst that is going to happen is that you get a cease and desist letter and you have to replace the photo. I would not suggest you try that with photos from Corbis, Getty or any operation that lives off licensing fees. They might be inclined to sue, particularly if you are a real business, because the statutory damages and attorney fees can make it economically viable to bring the lawsuits.

As an aside, I have seen a number of websites who take pictures from Flickr and give credit to the photographer in the belief that they are free to use the picture as long as they give attribution to the creator. Most photographers on Flickr who release any rights do not grant commercial rights. That means that a personal blog or website can freely use the photos. However, a blog that is operated in connection with a business or a blog that is created as a vehicle for AdSense or affiliate revenues is, in my opinion, a commercial venture and its use of the photo would fall outside the scope of the license.

Steve B
01-23-2009, 05:44 AM
This is an interesting discussion. I did a little research (but haven't read David's article yet). It seems there are two potential permissions involved. One is of the photographer and the second is of the model. That is why I thought if I took the picture of the book myself, I would elminate 50% of the potential problem.

This is certainly in the category of commercial use, but I doubt it would be something the auther would object to since the only result would be more sales of his book. I do like the idea of the disclaimer clearly stating they are not endorsing my product. Without the disclaimer I can see why it would be implied.

Finally, my use of this will be limited to one local event and possibly used throughout the year in my local area. I think I might move forward with this kind of local use.

Thanks for all the help. I'll read David's article too.

vangogh
01-23-2009, 10:40 AM
It is an interesting discussion. I'm not sure if you take a picture of the book how that qualifies. Certainly if you too a picture of books on your bookcase and that one happened to be on the shelf it would be fine, but if you set the book down and took a closeup of just the cover I'm not sure if that would be ok. Otherwise you could theoretically take a picture of any picture you want and claim it as your own.

I would think once the original photographer had a release from the model the photographer can do what they want with the image and further model releases wouldn't be necessary, unless there's something in the original release that only provides from limited use.

Patrysha
01-23-2009, 12:55 PM
Would this promotion be for print use or online?

If it's online, why not avoid the murkiness and use your amazon affiliate link with the cover?

Of course, you could just get in touch with the publisher and ask permission if you want to avoid the amazon link...or for print use. Most authors I know would love the free publicity in any market.

Steve B
01-23-2009, 05:27 PM
This will be for print only.

After this discussion, I'm feeling pretty comfortable taking a picture of the book and using it. For clarification, the book cover has an image of the author on it.

Patrysha
01-23-2009, 05:48 PM
I've asked on one of my writing lists for input from published authors. I'll come back with the results when I get a few more replies. So far, all have said they wouldn't have a problem if the business owner in question did the promotion even with stock images from the 'net.

nealrm
01-23-2009, 10:08 PM
Copyrights on photos are very easy - the copyright belongs to the photographer unless they specifically sign away the rights. The same applies to the book; the text, illustrations, etc belong to the creator unless specifically signed away.

That said, if you are promoting their product the chances of the coming after you is slim.