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record sleeve

Posted: Wed Oct 30, 2019 10:53 am
by vernonuk
I am the author and copyright holder of an image used for the record cover of a very well known singer (David Bowie). The image of the cover was recently used in a magazine for record collectors, twice inside and twice on the back cover. The publisher is claiming 'fair use', I'm not sure if that is fair! During the past year six or seven publications/videos/tv programs have used the image and paid a fee without any problem. I don't want to get involved with legal threats etc...any feedback would. be much appreciated. What exactly is 'fair use'?

Re: record sleeve

Posted: Wed Oct 30, 2019 7:40 pm
by AndyJ
Hi vernonuk,

'Fair Use' is strictly speaking a US doctrine which is somewhat broader than the equivalent UK doctrine known as fair dealing. Therefore it may depend on where the publisher is based on whether it is worth you pressing for a fee.

Let's look at fair dealing first. There is a closed list of exceptions which set out where fair dealing may apply. You can find them in sections 28 - 31 of the Copyright Designs and Patents Act (CDPA) 1988. The 'fair' in fair dealing means that it is not acceptable to use more of a copyright work than is strictly necessary for the purpose described in each section. I think the most applicable section to describe what has been done with your album cover image is section 30, namely for the purposes of criticism or review, or alternatively, for quotation. However from what you have said there appears to be little or no critiquing or reviewing going on and so it is doubtful if subsection 30(1) would hold up as a justification. Subsection 30(1ZA) is more problematic, because it is relatively new and we have no guidance from the courts on how it might be applied. Some authorities have said it can only be applied to the written word, and that images can't be 'quoted', but as I say we don't know if this is how the courts might construe the statute. However, since you say that the cover image appears on four separate occasions in the magazine, I think that is stretching 'fair' beyond its breaking point. There is one other reference in the CDPA which may be relevant here, and that is section 63. This allows for small, low resolution images of artistic works to be reproduced in things like sale catalogues or on ebay listings etc, to show the work being offered for sale. However I think a listing in a collector's magazine would fall outside this quite limited exception, because the magazine publishers are not acting as sellers here.

So under UK law and dealing with a UK publisher, I would say you had a claim. Not a strong one, but worth a punt.

The US doctrine of fair use is, as I have said, somewhat broader and less constrained to particular circumstances. In recent times the courts there have issued some very strange decisions (eg here). The US courts generally test the alleged infringing use against four factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
While I think that factors 1 & 3 would go in your favour, 2 and 4 are debatable. On factor 2 they would argue that your image exists solely to make Bowie's album more attractive to potential buyers. In contrast, they would say that their use of the image is utterly different, namely to describe the collectability of the album itself (this is the so-called transformative use idea). And so when it comes to evaluating the fourth factor, their legal team would argue that there can be no negative impact on the sale of Bowie albums through their use of the image; quite the contrary, they are seeking to stimulate the market in this album (although Bowie's estate will probably not see any of the money from such sales, if they are second-hand sales!). In other words your image will be portrayed as having no worth outside the strict confines of it being on the album cover. Thus in totting up the factors, it might be a draw. However given that the magazine might be able to afford better lawyers than you, I think the publishers might expect to win if this went to court in the USA. What's more, there is a fairly well-known case in the USA called Perfect10 Inc v Google Inc in which Google's use of thumbnail images was judged to be fair use. The facts in that case, arguably, make it applicable to the circumstances you have described.

One final point which might make a difference: were you commissioned to create this image and if so, what were the terms of the commission? For example, did the record company want the full copyright to be transferred to them, or did they just purchase a licence, and if so what were the terms of the licence you provided (exclusive, or not)? Clearly if the record company purchased the copyright outright then you no longer have any say over what happens to the work now, except possibly to invoke the right to a credit as the author of the image, if this was asserted as part of the commissioning agreement.

Sorry this is all rather negative, but I wouldn't want to build up your hopes on this issue. I trust you were well-paid for the original work!

Re: record sleeve

Posted: Fri Nov 01, 2019 9:18 am
by vernonuk
Many thanks Andy,
Very useful feedback, food for thought!
I guess the images inside might be covered by criticism or review but is there not an obligation to credit the author? Saw that somewhere i think. However the image being used twice on the back cover, unaccompanied by text cannot surely be covered by this?
I think the question of my ownershop of the copyright is watertight although its 50 years since it was taken. no paperwork exists...times were more relaxed then...but Warner Music who have the rights to the music accept my ownership. Many others too eg. BBC, National Portrait Gallery, V&A etc etc.
Im not looking for a fortune, just what say the NUJ might indicate, a fair deal!
Thanks again

Re: record sleeve

Posted: Fri Nov 01, 2019 10:03 am
by AndyJ
Hi Vernon,

Glad to hear that you retained the copyright. If the record company don't oppose you on that, then you should have a pretty straight forward claim against the magazine. And yes, if they try to claim this was section 30 fair dealing, then that fails because there was no credit for you as the author of the work.
Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise) and provided that the work has been made available to the public.
(my emphasis)

Here's a link to a case from a few years ago which also involved images on a record sleeve, in that case for Elvis Costello. Although not directly parallel to the facts in your case, useful backup for your position.

Afternote. I'm guessing this is the album you are referring to: Wikipedia: David Bowie 1969 album cover art. The fact that the Wikipedia article identifies you means that there is no excuse for you not receiving a credit in the collectors magazine.

Re: record sleeve

Posted: Fri Nov 01, 2019 6:42 pm
by vernonuk
Thanks again Andy,
Another point they make is that their picture is of the record sleeve and not the originating image. The cover is just the image plus a title text added by Mercury. Can this make any difference? Dont see it myself.
Best wishes

Re: record sleeve

Posted: Fri Nov 01, 2019 10:24 pm
by AndyJ
If we are talking about the image of the album cover at the top of the wikipedia article, then just adding the words David Bowie and the Philips logo would be insufficient to create an 'new' image with a separate copyright as there is nothing original in what has been added. So your underlying work remains the substantial part, and copying a substantial part without permission is the essence of infringement (see section 16(2)&(3)):
(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.

(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it—

(a) in relation to the work as a whole or any substantial part of it, and

(b) either directly or indirectly;

and it is immaterial whether any intervening acts themselves infringe copyright.