Are Images of Vintage Paperback Covers and Original Artwork in the "Public Domain?"
I will start this article with a HUGE DISCLAIMER.
This is a discussion. It is only opinion. Neither I, nor others quoted herein, are lawyers. If you need legal advice, go to a legal professional. If you are interested in researching this subject, read on.
This is a multifaceted question. We can't just look at the book, or the cover; we have to look at the art as well. What is germane to one may not be for the other two. And besides the concept of "Public Domain," we have to consider other subjects ... terms of copyrights, "fair use," etc.
First, copyrighted text. That's relatively straightforward ... as long as you stay within the boundaries of the law. http://www.copyright.gov/title17/
Eventually, copyrights expire ... or they are relinquished by their owner. That's why you can go to websites like Munsey's, ManyBooks and Project Gutenberg and download tens of thousands of free books for your computer or e-reader. Once a literary work has been released from copyright (or if it never was copyrighted), it is said to be in the Public Domain, and its use is unrestricted by U.S. law.
No law, however, is ever really clear. There are always exceptions ... and exceptions to those exceptions. Law gets fuzzy (if it was clear, there wouldn't be a need for lawyers).
For example, take the case of a literary critic writing a book column for a metropolitan newspaper. Can he legally copy a paragraph from a book to illustrate some point? The answer, of course, is yes. The legal concept that allows him to do so is called Fair Use. But this clause goes far beyond just that example. It also allows a portion of the work to be copied for educational purposes; and, a person can use a portion of the copyrighted material if he can demonstrate that the use neither financially helps him, or hurts the author. Notice that italicized word there. The definition is one of those "fuzzies." We'll have to let the lawyers argue about how much a "portion" is. And as for the part I underlined ... well, we'll get back to that.
And now for a REALLY fuzzy concept: If I don't copy an author's writing, but if I steal the idea behind that writing, am I in violation of copyright laws? Well, of course I am! A novel is more than just a collection of words ... it's an "intellectual property." Of course, proving that you had an idea before someone else did is often difficult ... but that's okay. It keeps the lawyers busy.
And now, finally, we come to art. First question: Can art be copyrighted? The answer is a resounding yes. A painter (or photographer, composer ... ANY artist) can copyright his work the same way an author can. But the concept of "intellectual property" gets fuzzy indeed. A painted scene, a subject's pose, a still-life, a landscape, a secondary melody ... these may be difficult to claim first rights for. Recently, rap music artists have sued each other for plagiarized backbeats!
Next, HOW does the author, artist, composer or creator of intellectual properties go about getting his stuff copyrighted? It's easier than you might think. If you want to be certain, you send a copy of your work to the U.S. Copyright Office and register it, but you don't really have to. All you must do is be able to somehow prove that you were the creator of the work.
In most cases, this means that if you get your story/art/song/etc in front of the public first and claim ownership of it, then the work is considered yours, and anyone that disagrees would have to challenge that in court.
Then we need to view the "Fair Use" clause in light of art. You can't (or don't want to) use a "portion" of a picture in something. Pictures stand alone; and so an art critic (or someone who wants to use a photo or painting for educational purposes) needs to be able to use the whole picture. The key issue is whether or not a picture you know to be copyrighted is used in an honest way. Rather than wrestle with all that, it is FAR better simply to obtain permission from the copyright holder ... IF you can find that person. The biggest question about pictures (and book covers) from the "vintage" period (1950's through the 70's) is whether or not they are considered to be copyrighted now.
And so, on to the rights of the current owners of these items. If I collect books, what can I do with them? They're all mine, right? I own the rights to a book in my collection ... the physical book, I mean. I can read it, burn it, give it away. Can I copy its text, word for word, and post it on the internet? No, of course not. Can I take a picture of the cover? Well, sure. Can I post that picture on the internet? Yes, as long as it falls within "Fair Use." That means that by posting it, I am not harming the artist/publisher, nor benefiting myself at the creator's expense (a person cannot sue unless he or she can show harm).
But, we can't be too free with our assumptions. In the mid-1970's, Look Magazine, Playboy and NBC each parodied one of the most copied (and parodied) paintings in the United States, Grant Wood's American Gothic, in sexually-modified poses (a bikini on the Johnny Carson Show, a brassiere ad in Look, and topless in Playboy). Unknown to them, Wood's sister, Nan Wood Graham, who posed for the famous painting, was still alive. She sued, and they settle out-of-court in each case (the money going to charity). Then she sued Hustler Magazine for ten million. (Several internet blogs claim that Mrs. Graham won, but I can find no verification for that. Hustler did file a countersuit, but their case was thrown out.)
Late last year, the Vintage Paperback Group on Yahoo got into a rather heated discussion on the rights of artists, the legal protection of their paintings, and what the current owners of those paintings could and couldn't do with them in the internet age. Many were speaking from experiences they had in in the publishing industry during the 60's, 70's and 80's, but times change ... and laws along with them. There was a major revision to the copyright laws in 1976, again in 1989, yet again in 1998 (the Digital Millennium Copyright Act), and also in 2004 and 2008 (that last one greatly modifying the rights to Intellectual Properties). Robert Wiener, one of the participants in that discussion, is allowing me to reprint his words ... just so long as I reiterate that disclaimer I printed at the beginning of this article.
Aside from the FAIR USE issue, it is my understanding that, for the most part, for all works created after 1977, all rights remain with the author/artist unless there is a written contract releasing the rights. Items published without a copyright notice prior to 1978 are in the public domain. Items published between 1978 to 1 March 1989 without notice, and without subsequent registration within 5 years are in the public domain.
As most paperback covers prior to
1989 were not registered with the copyright office (publishers copyrighted
the text, not the covers) and also did not have a copyright notice on
them, I would argue that the images are in the public domain. From the
1970's on, a number of artists started putting a copyright notice on their
paintings but I don't know how many filed registration with the Copyright
Office before 1989. Check out:
Magazines are a different kettle of
fish as I believe the original copyrights included the entire magazine as
well as covers and interior art. Magazine renewals are another story and
many authors renewed their own stories.
Now, in MY opinion, the pertinent question is: who, other than the owner, has a legal interest in a book's cover or illustration? For those items from the "vintage" period, probably no one ... UNLESS you misrepresent it. Then, apparently, even the models can get involved, if they're still around. If you change the painting, make false claims (such as stating you are the artist), or basically present the book, cover or illustration as something it is not, then several parties might have the right to raise a legal objection.
Can you take a painting you own, or a book cover (such as the ones depicted on this website), take pictures of them, and use those pictures to make money? The answer to that one ... IF you do not misrepresent them ... is probably yes. If I took one of the paintings (which I own) shown at the left, wrote an article for sale to a literary magazine about the artist, and used a picture of that painting to illustrate the article, I would probably be wholly within my legal rights. If I wrote a price guide or other reference book, I would be in my legal right to use my pictures of the books' covers to illustrate the volume ... IF I do not misrepresent, etc, etc.
Several people have started small businesses which print post cards depicting the covers of vintage paperback books. They probably SHOULD attempt contact with the publishers of those books to see if they retain any rights to them, but let's face it ... the vast majority of those companies no longer exist. Even if someone connected to those operations was still around, they would be hard pressed to prove any harm from such sales. The artist sold the rights to his painting almost before the paint was dry ... and IF you have not altered his painting or made false statements concerning it, his interests remain intact.
And so, the answer to the question way up at the top of the page is ... yes, images of vintage paperback covers ARE in the public domain.
BUT ... there are exceptions. There are always exceptions.
(Now, go back and read that disclaimer again.)
- Bruce Black
(At the left, click an image to see the full picture. Click the artist's name to see the book it was used on.)