Can public domain paintings be used to make a cover?

I am not a lawyer, and this is not legal advice. But I'm 99.9% sure that public domain images can be used for covers. Best make sure it's actually public domain first, though, and if it's a more recent work that's in the public domain because the artist put it there, it'd probably be best to ask first, even though you don't technically have to.

Public domain means no one can claim copyright on it which means anyone can copy it and use it for whatever purpose. This is why some classical novels are now free on Amazon kindle or very cheap on paperback - they don't need to pay the authors or the original publishers anything to use them. Hence also why we can have novels like Pride and Prejudice and Zombies which are half the actual text of the original more or less copied with some minor changes and added scenes.

And there have been some classical works of art used as covers before so I assume it is either ok or there is a method to gain permission.

Keep in mind that many times, museums who own those specific works own the license to the *photographs* that you see online or in books. It depends on the museum and the specific art work.

Read this for more:
http://copyright.columbia.edu/copyright/2011/06/27/copyright-museums-and-licensing-of-art-images/

Most of the photographs of older works of art that adorn the covers of books from trade publishers are from photographs copyrighted by the museums that own the works of art themselves. In many cases, those museums do not permit photography of the works in their collection unless the copyrights are assigned to them.

So, though the museums don't own the copyrights of the works themselves, they effectively control the copyright of all reproductions of those works.

The fact that you can find an image on Wikipedia or wherever doesn't mean that that image can be reproduced on your book cover without permission.

Hmmm, I'm wondering about derivatives of photos of out-of-copyright works (paintings, photographs, etc) say, by photoshopping. For example, modified versions of Mona Lisa, The Scream, Persistence of Memory. Any thoughts?

This is actually a tricky question:

http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

Alessandra Kelley said:

It's not clear that you as an individual small publisher wouldn't still get your backside paddled if you tried to apply this, though. The legal stuff is still being thrashed out.

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Here's the really tricky part. The rights holder or purported rights holder can sue you. That suit can block publication, never mind suck up time and money.

Alessandra Kelley said:

So maybe stick to public domain works in friendly museums?

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IANAL, but I would thing about doing that, or licensing the image from a stock house or other entity that asserts that they have the rights and can sell them to you.

If you're self-publishing an ebook, you need to be able to tell the rights holder the size of the image, the dpi, and where the file will be on sale in terms of geography.

If you are willing to include a digital watermark, and/or copyright statement and link, etc. you maybe able to negotiate a decent non-bank-breaking rate.

Try to negotiate with a person, on the phone or in email, rather than just a form on a Web site. And read the fine print on the contracts carefully.

They sometimes will include things the rights holder doesn't specify--like you're only licensing the image to use on 500 units--which may not be a problem, but it might.

And please don't make the mistake that many people make, which is to assume that "available to the public" or "on the internet" is the same as "in the public domain". You'll come a cropper if you do.

I was planning a website and needed to know if and how much the National Portrait Gallery pic of William Shakespeare would cost. This is part of the email sent in reply to my query dated 2 May 2008:

Thank you for your email requesting permission to use NPG 1 William Shakespeare on your website. Please can you give me the website address?

Yes you do need a license to reproduce any images from our collection either on a website or anything else. We would class this as a domestic website and we charge our lowest reproduction fees for this type of use.

The cost for the licence for up to 3 years for a domestic website is £18.00 + VAT = £21.15. The cost of supplying a digital image is £25.00 inclusive of VAT. The total price for permission and supply of image is £46.15, however if the image on our website is large enough for your purposes then you can download it from there and you only need to pay the reproduction fee of £21.15.

As you do not have a credit account with us at present, we would require payment in advance. This can be done in a variety of ways - a cheque, drawn on a British bank, and made payable to the "National Portrait Gallery", credit cards - AMEX, Visa and Mastercard (please include card number, expiry date, statement address and the card holder's name as it appears on the card - PLEASE NOTE that we do not have a secure internet server for receiving card details so would prefer to receive the information by phone, fax or post) or bank transfer (please contact us for further details). All payments must be made in sterling. Please quote our reference ******* in all correspondence.

If you have any further questions, please do not hesitate to contact me,

Kind regards, Emma *


VAT must be charged at the UK rate of 17.5%. Our Vat number GB 240 1362 14.
All prices quoted in this letter are only valid for a two month period from the post-date.
Subsequent transparency hire fees are applicable if a transparency has not been received by us by the end of the first month hire period. All images must appear with a credit line, which reads, "National Portrait Gallery, London" (alternatively, this credit may appear within the picture acknowledgements). Images reproduced without a credit line, or in reverse, will be subjected to a penalty fee, which will not be less than the original reproduction fee. One complimentary copy of each publication must be sent to the NPG Picture Library upon publication, for our reference purposes.

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*Emma Butterfield Picture Librarian
National Portrait Gallery St Martin's Place London WC2H OHE

I've run into this before in Australia with out-of-copyright images, but there is a way around it. Libraries charges a reproduction fee for use of a high-resolution image, but according to Copyright Council Australia, if you can acquire a high-resolution copy of the image in another way, then you have every right to use it, as the library has no copyright per se over the image, they only have the right to charge a license to use their own reproduced image. So if you find the image in a book elsewhere and can scan it at high enough resolution to use it, you are able to do that without any infringement, was basically what CCA told me. Of course you have to ensure you use only the artwork, not any surrounding design or text, which is copyright.

That may not apply in the UK or USA but this advice was given to me when I inquired about reproducing out-of-copright images of artwork pertaining to Australia's colonisation.

But if the image in the book is from a photograph which is still within copyright, you'd be infringing the photographer's copyright, surely?

What Old Hack said. Would you also not have to give some acknowledgement of where you got the image from?

Artwork

Not if it is just a photograph of out-of-copyright artwork/image with no "original" value of its own.

E.g. The copyright council says: 'In order for a work to be protected by copyright it must be “original” in the sense that it is not a mere copy of another work. If it is sufficiently original, the work is likely to be protected by copyright in its own right, even if it is derived from a pre-existing work.'

If it is a straight photograph of an existing out-of-copyright artwork then it should be okay. If it is a derivative work, then you'd need clearance from the copyright owner of the photograph. The photos/artworks I wanted to use, however, were all from the library. E.g. historical images that were all taken back in the early 1900s and were themselves out of copyright. (So they weren't photographs of artwork as such, but scans of photographs. But the same principle applies). The scans that the library charges a "reproduction fee" for are not copyrightable, so if someone else has paid for those images under a contract with the NAA and reproduced them in a book, there is no secondary copyright on me scanning just that image from the book if it is a straight copy of the original artwork (although if they applied a decorative border or something, I could not scan that). See what I mean? It's a loophole the guy from the copyright council told me I could use.

Like much Australian copyright law, there is a grey area. If it is an artistically styled photograph of an existing artwork or something it might be problematic, so it pays to check with the copyright council, but for what I wanted to use, it was a way to bypass a rather hefty reproduction fee on an out-of-copyright image.

You can read more about it here.

If in fact a photo you took yourself of the painting is acceptable, you might find a photographer who's taken a photo and released it into the publish domain him/herself.

That's right, Katrina. For instance, if a photographer has taken an image of an out-of-copyright artwork or photograph and licensed it under creative commons as available for commercial use.

It always pays to check, though, and as I've said, that's why I rang the Copyright Council to see what I was able to do to get around the fee. Although I know libraries and galleries do important work in safeguarding items in the national interest or that are of international significance (for some galleries), I also think it is wrong for them to monopolize rights to something that is out of copyright.

But then, I think copyright goes too far. I'm all for copyright existing only for life of the author/creator.

I know that when I was working on highly illustrated books, which used lots of photographs, we weren't allowed to use any photographs of other images without both acknowledging the creator of the original work AND the person who took the photograph of it, and without paying the photographer's fee if they charged one. No matter where we found that image.

Skippy75 thanks for the clarification .

Old Hack, that would be true if the original work were in copyright, but when it is out of copyright, in Australia at least, it is a different story IF it is a straight reproduction with no artistic interpretation. However, I'd used creative commons licensed images of historic out-of-copyright images and artwork (or scanned versions of historic photographs that were supplied by those libraries, as evidenced by credits). This is easier, of course, for ebooks as the required image resolution is lower.

If a photographer were involved e.g. the image wasn't just reproduced from the scanned hi-res file supplied by the national archives etc (and you could tell this from picture credits in the book) but credited to a secondary photographer, then the thing to do would be to seek permission from that photographer. But as I said, it is a grey area as to whether copyright would be upheld if the photograph's cropping was entirely the artwork with no significant "original" elements. E.g. a flat photograph of the Mona Lisa. Having said that even post-production colour management on the photographic image might be said to be "original" enough—whether that would hold up in court is as yet untested here in Australia. So if it is a photograph that is not CC licensed for commercial use (or that you haven't taken yourself or been permitted to use), then I'd still advise checking with that photographer.

This is an interesting legal issue... say, for example, you were to photograph a copy of Harry Potter and the Philosopher's stone. Not the book itself but each page of text, individually. Who owns the copyright then?