'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!