[Author’s note: as with everything legal, I speak here in generalities. Every case is different and if you have a specific legal problem regarding one of the issues I speak about below, you should contact an attorney right away.]
Last week, The Atlantic Wire posted this piece on 25 of the Most Wonderful Book Covers of the Year. Each book mentioned was accompanied by an image of the book’s cover jacket and to my great delight, number 19, The Raven Boys by Maggie Stiefvater, was on the list. This was a big deal for me because The Raven Boys cover was illustrated by my buddy Adam Doyle. You can check out his original painting of the cover, as well as many of his other amazing works at his website. I’ve known Adam for ten years and on top of being a damn talented painter and illustrator, he’s a great friend. He’s the one who designed the lovely logo adorning this website.
Unfortunately, Adam wasn’t recognized in the piece as the artist of The Raven Boys cover. In fact, none of the artists were credited for their work; only the authors and the publishers were named. Adam pointed me towards the article and asked me my thoughts. "Well," I pondered, "that sucks because every artist should get credit for the work they do." In reality, there’s little money in being a professional artist, so credit is frequently the only reward. I also know how hard Adam works and how seriously he takes his job, so it’s especially maddening to see him not getting the recognition he deserves.
The lack of crediting upset me, but I became especially uneasy when I noticed the article's comments section teaming with non-lawyers using terms like "infringement" and "breach." Some felt that use of the images in the articles, without proper accreditation, was a violation of the artists' copyrights. But that argument actually wrongly combines the issue of accreditation (or lack thereof) with the issue of using of images against the wishes of the artists.
So first off, failing to credit the artist in an article praising the art is not legally actionable under any standard that I’m aware of. It's bad form and maybe bad journalism (and frankly a little weird), but it's not a legal right to be credited as the artist of a particular piece of work. [I should note that at no point did Adam complain or even ask me for legal options. He was just curious about my take on the situation.]
Secondly, there is no copyright infringement going on here. Here are two reasons why.
(1) The artist most likely doesn't own the work. Generally speaking, if you’re an artist and you create a work of original expression, the copyright belongs to you. But what if you’re hired by someone to create a work of art? That’s what copyright attorneys refer to as a “work for hire”, which in its broadest terms, means that the copyright is owned by whomever commissioned the work, not the artist hired to create the work. The ownership of a work for hire is determined by the employer’s motive and desire, not the artist’s handiwork.
In this case, I would wager that most (if not all) of the artists were commissioned to design the book covers, meaning that the copyright is owned by the entity that hired them in the first place – the publisher. This is especially important for artists to know because so often they assume "if I created the work, then I own it." Not so. Here's a tip: if you're an artist and you do a work for someone without a written or oral contract stating the terms or ownership, you should assume that you are not the copyright owner. Artists needs to be aware of when their ownership over the work ceases because it can get them into trouble down the road (for example, licensing away rights to work they don't own). In a case like this where the publisher is the owner of the book cover, it can do just about anything it wants with the image. Because of the work for hire doctrine, the artist has little or no say in the way that image is used. That's the price of getting your work out there... relinquishing control. Sadly, sometimes that means having to forego credit, even if it's rightly yours.
(2) Ownership aside, using the book cover images in the article is protected by fair use. Fair use is a legal defense that allows you to legally use someone else’s copyrighted work without permission of the copyright owner. Now fair use isn’t a get-out-of-jail-free card for every instance. It can only be used in certain cases, like “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Fair use says that it’s sometimes okay to use another’s copyright if the purpose of that use isn’t profitable. After all, without fair use, we couldn’t criticize books, TV, movies without being sued. CNN would get sued every hour of everyday. Fair use protects against that.
The Atlantic Wire is ostensibly a news outlet (and even if it isn’t, the article clearly falls under the criticism or comment exceptions) and because of that, the website would not be liable for copyright infringement because it displayed images of the book covers. That's why it didn't need permission to use the images of the book covers. It was under no obligation to seek the artists' permission or credit them for their work.
So there’s no legal recourse for the artists, but can they do anything else to remedy the situation? Sure. Their best course of action is some form of activism, such as petitioning the article’s author to amend the article and repost it with the artists’ names. They can negotiate with the publishers to have their names published on the front or back of the book instead of the inside jacket (easier to see and find). They can even talk directly with the book’s author to be credited on the author’s website. In other words, the legal system isn't going to work in their favor, but there are plenty of non-legal options worth pursuing.
