Book Jacket Images for Library Web Pages

[JQ Johnson]

Brian Smith suggests a fair use defense justifying use of copyrighted book
jackets on the web without permission.  A couple of additional notes on
this approach:

0/ as others have noted, the book jacket is generally a separately
copyrighted work.  This impacts both the "amount and substantiality" part
of the fair use calculation, AND other factors.

1/ For example, the "purpose of the use" part:  In most cases you're using
the book jacket to criticize the book rather than critically examining the
book jacket itself, so that weakens your case on "purpose".  But it's
still a nonprofit educational institution using the work for criticism,
comment, news reporting, or somesuch.

2/ On factor 2, book jackets tend to be artistic, so tend to oppose fair
use.  Factual/nonfiction tends to favor fair use.

3/ Although factor 3 works against you, it's important to note that amount
(factor 3) is not by itself determinative.  One can use a whole work and
still have it be fair use.  All 4 factors need to be weighed.

4/ I think factor 4 is likely to be determinative.  What is the effect of
your use going to be?  I think you can make a very strong case that your
use will increase sales of the book, and probably therefore also increase
the value of the cover.  On the other hand, if the owner of the copyright
has a licensing mechanism in place for collecting money from you, then
using the work without paying the royalties will hurt the owner.  On this
score, the fact that the publisher rejected your attempt to license the
use works in your favor (it would be even better if the illustrator had
rejected your request).  It would have been worse if the publisher had
offered steep license terms.  On the other hand, it's a pretty public
multiple-copies kind of use.

Back to the particular case of bbrattin at wnpl.alibrary.com.  Barbara
Brattin writes that "After much negotiation, S&S is going to make 'an
exception'".  I'd be rather nervous about this, and would want some
assurance that the exception is really S&S's to make.

JQ Johnson                      Office: 115F Knight Library
Academic Education Coordinator  mailto:jqj at darkwing.uoregon.edu
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