I want to create a website recommending books.  For some of the books
I'd like to take my own photo of the book cover to show what it looks
like.  (Example:  a photo of _my_ copy of a Hardy Boys book to show what 
the series looks like.) The image or text may include an affiliate
link to a website where that book may be purchased.  So, this would
not be a simple hobby site, but have money-making intentions.

Does _my photo_ (thumbnail-sized) of my copy of the book violate the
publisher's, illustrator's or author's copyright? (I do not intend to use
others' photos.)

If a particular website addresses this issue, I would appreciate that
information.  I have a simple understanding of fair use regarding the
works of others, but not enough information to feel comfortable with
my intended plans.

redrock1234

Hi redrock1234,

"Does _my photo_ (thumbnail-sized) of my copy of the book violate the
publisher's, illustrator's or author's copyright?"

Briefly, for the purpose of selling a book, you can regard displaying
an image of it as fair usage.  Reproducing an image for profit
(selling copies of the image rather than the book) is a breach of
copyright. In other words, your photo is just a picture of your
merchandise - the picture itself is not the merchandise for sale.

You would not be offering reproductions of the book, illustrations, or
dustjacket, but rather just taking a photo of something you have. I'm
not clear whether you are offering your own book for sale or just
linking to another website (such as Amazon) where another copy of the
book is for sale. Whichever is the case, it doesn't really matter. The
key is what your intentions are regarding the image of the book. If
you were making digital copies of the dustjacket with the intention of
selling the copies, you'll need permission to do so. Noone is going to
complain if you are displaying a portion of the book for the sole
purpose of selling the book (or just making a list of the books you
like). If this weren't the case, there would be an awful lot of
booksellers in trouble - just think about eBay and all the images of
books there.

Forum: rec.collecting.books: Copyright status of DJs:
"There are certain instances where the copying of d/js and the like
would be considered 'fair usage'. For example, I would regard fair
usage as a reproduction of a d/j for the purpose of selling a book, or
the illustration of a book on, say, a bibliographic web site, or in a
bibliographic book compilation.
Photocopying , for sale, or any reproduction for profit, of an
in-copyright image, is clearly a breach of both publisher's and
artist's copyright."
http://groups.google.ca/groups?hl=en&lr=&ie=UTF-8&threadm=B971CE7C.9646%25cirelli%40sonic.net&rnum=2&prev=/groups%3Fnum%3D100%26hl%3Den%26lr%3D%26ie%3DUTF-8%26q%3Dbookcovers%2Bcopyright%26btnG%3DSearch

Go to the International League of Antiquarian Booksellers:
http://www.ilab-lila.com/
Type "hardy boys" in the title field. You'll find four Hardy book
images there. That is fine, but what wouldn't be fine is for you to
download those images to your hard drive and use them on your website
- to do that, you would need permission from the bookseller.

Do the same on Abebooks, where booksellers are *encouraged* to upload
images of their books and Abebooks even "hosts" the images:
http://www.abebooks.com

However, this brings up another interesting issue, and that is *your
photograph*. As a photographer, you may want to take measures to
ensure that someone doesn't copy *your* work. Often booksellers
include a "watermark" with their online photos to discourage others
from using it - this can be simply a small "photo by redrock1234"
which you've written on a piece of paper and placed in a corner of
your photo, or you can purchase special software.

"Technologies such as "watermarking" software also are making it
easier to track down copyright pirates on the Internet. Digital
watermarking places a subtle yet visible mark on an image that carries
telltale information about its source. Watermarking can be integrated
into Photoshop and other graphics programs to allow creators to save
images with embedded copyright information without visibly altering
the image. That identifying information is visible to a special reader
program when a watermarked image is downloaded and opened. Other
programs can then scan the entire Web for watermarks and report
unauthorized uses of copyrighted content."
http://www.3m.com/meetingnetwork/presentations/pmag_copyright_criminal.html 

Easy Watermark Creator 1.0: Free trial then $15 to buy:
"Easy-to-use tool for addition of visible watermarks to your pictures and photos."
http://www.soft32.com/download_21124.html

Forum:  Protecting Photos:
http://www.frontpagewebmaster.com/m-182493/tm.htm

Forum: Can I copyright/mark my photos before putting them on a website?:
http://forums.techguy.org/t231796.html

Additional Link of Interest:

Forum: rec.collecting.books: Repro Dust Jackets?:
http://groups.google.com/groups?selm=mSA9a.146547%244F3.9456413%40news2.east.cox.net&output=gplain

Copyright Registration for Online Works:
http://www.copyright.gov/circs/circ66.html

"In order to sue an infringer the copyright holder must register the
photo.[7] In order to register the photo, the photographer must
possess the photo. Traditionally this is not a problem because the
photographer would have a negative, or a print or a slide or some
tangible object as a photo. If the photographer has scanned the photo
onto a home page or provided the photo to a gallery then there would
be no problem if the photographer retains the original. See Philip
Greenspun's FAQ on photo scanning. Similarly a CD disk photo would
also be tangible to register. However when a photographer uses a
filmless camera this projects images directly onto a computer for
real-time adjustment.[8] If a photographer were to upload this kind of
photo, some tangible print would still be required for
registration.[9]"
http://www.gsu.edu/~lawppw/lawand.papers/KB4.html

I hope this helps. If you have any questions, please post a
clarification request before closing/rating my answer and I'll be
happy to reply.

Thank you,
hummer

Google Search Terms Used:

internet photos books copyright
book images copyright
book photos copyright
book images increase sales
uploading book images
"used books for sale" images on websites copyright
"books for sale" allowed to post image
"books for sale" "images" copyright
"books for sale" "images" copyright
etc.

---

Request for Answer Clarification by redrock1234-ga on 05 Jun 2004 17:32 PDT

Hummer,
After re-reading my question I can see that my intended use of the
images was not totally clear.  Although I will take a photo of 'my'
book, it is meant to stay on the website long-term as a
'representation' of the series and/or individual book (with
appropriate disclaimers as to condition).  My website will list books
and/or series' of books that I like and can recommend.  I would like
to link to sites that carry the book, and if a sale is made, then I
would have earned a small commission.  I believe you are saying that
as long as the image itself is not for sale, I should be OK.

I'm glad you went the extra mile and suggested protecting my own
images.  I've seen this done occasionally on Ebay, etc. and will need
to investigate further how I could best do this.  I own Paint Shop Pro
which has watermarking capabilities.

Your last paragraph includes a quote stating that a photo must be
registered in order to sue for infringement.  I had assumed that
photos enjoyed automatic protection once they were placed into the
public arena.  (I realize that may be a flawed assumption in itself.)
I suppose proof of ownership is the difficult aspect?  Further, I
suppose that the uniqueness/value of the image would be the deciding
factor in whether I go to the expense of registering?

Your answer is very thorough and much appreciated.  Ipfan's comment is
very helpful as well.  As he/she suggested, I'll investigate how to
deter downloading of any images.

Thanks, 
redrock1234

---

Clarification of Answer by hummer-ga on 05 Jun 2004 20:02 PDT

Hi redrock1234,

"I believe you are saying that as long as the image itself is not for
sale, I should be OK."

Yes, my main point was, noone is going to mind that you've taken a
photo of your book and are displaying it online - whether the book is
for sale or not, it doesn't really matter - the photo is yours and
yours alone. But let's say you take a photo of an illustration within
the book and produce reproductions for resale - that would be an
infringement of copyright and the same could be said for a photo of
the book cover.

"Your last paragraph includes a quote stating that a photo must be
registered in order to sue for infringement."

Actually, everything must be registered to sue for infringement. 

What is a registered copyright?
"Copyright is granted automatically, but you must register the
copyright with the Library of Congress to be able to sue if someone
infringes your copyright. The registration process is inexpensive and
may be done at any time up to 3 months after the infringement has
occurred. If you register prior to infringement you are able to sue
for additional damages and attorneys fees."
http://www.ucop.edu/ott/crbasics.html

"...I'll investigate how to deter downloading of any images."

In regards to the book trade, watermarking your image is preferred
over trying to disable downloading - it's more "courteous" to viewers.

Forum: Site Graphics and Multimedia Design:
"I would recommend an entirely different approach to protection your
images. I do the following.
1. Always upload your images in the smallest physical size. If the
image is shown in 200*200, upload the image in that size, never upload
a bigger image and downscale.
2. Always use highest acceptable compression rate. Using .gif or .jpg,
you must compress your image as much as possible, It gives you higher
download speed and keeps the quality down discouraging people from
stealing it.
3. Give your image filer unique names. Most people don?t bother to
change the name of images they steal. By searching Google for the
specific filename, you can often find the perpetrator.
4. Sign your images. In Photoshop you can use digimark to sign your
images with a unique signature
5. Keep your good quality images in an restricted area of your web, or
let people who want?s better quality images e-mail you"
http://www.webmasterworld.com/forum36/1361.htm 

Redrock, booksellers rely on taking photos of their books and that is
especially true with something like the Hardy Boys series. Several
different editions were published and what better way to show what you
have than to display a photo - a photo compliments a description so
well. Also, books can be works of art (decorated bindings are a
speciality in themselves) and just as they can add color and interest
to any home, the same can be said for websites. Please do not worry
about uploading your photos (with watermarks) to your website - you'll
have everything to gain and nothing to lose.

Off-topic a bit, but in regards to affiliate sales. Websites like
Amazon rely on ISBN numbers, which didn't exist until the late 1960's.
I'm not sure what you are thinking about doing, but your 1955 Hardy
Boy book will not look the same as a more recent reprint with ISBN
number that would be linked to a website like Amazon.

Please do not hesitate to post another clarification - it's impossible
to post too many.

Sincerely,
hummer

---

Request for Answer Clarification by redrock1234-ga on 07 Jun 2004 20:28 PDT

Hummer and Imfan,
I'm extremely thankful for the information that has been offered here.
 As a first-time Google Answers user, I am finding this to be a very
valuable forum.

I do want to do the right thing, because I believe a copyright holder
(author, publisher, illustrator, etc.) has the right to squeeze every
dollar from his/her creative talent.  Since my intentions are to show
representative copies, I wouldn't have any hesitation to place a
removable sticker stating "sample" on the book before taking the photo
so that its value is marginalized even further.  Further, I suppose if
I angle the book to show a bit of side and front, it would make it
even less enticing, but still allow my market to visualize the book
they are seeking.

I have virtually no photographic talent, but even if I did, I don't
see at this time any reason why I would want to aggressively protect
any book photo that I might take.  However, I can foresee that I might
want to keep careful records of how I attempted to stay within 'fair
use', so that any future image manipulation done by others might not
be incorrectly attributed to me.

My book recommendations will be from the used, out-of-print market
primarily.  (I realize they are still under copyright unless before
1923.)  In regard to new, in-print books, sometimes the merchant
(Amazon?) authorizes use of its website images to be used in affiliate
marketing.  I'm presuming that they have obtained permission from the
publisher when that is the case.  One should never presume, so I'll do
more homework before using them.

Unless I have opened another can of worms with these latest comments,
I'm very pleased with the recommendations and dialog from both of you.
 I'll read through each and every link that you have provided.

(This post is not necessarily a request for clarification.  Should I
be posting a comment to my question instead of a clarification
request?)  Thanks!

redrock1234

---

Clarification of Answer by hummer-ga on 08 Jun 2004 04:43 PDT

Hi redrock1234,

I think putting a removable sticker on your book is an excellent idea
- it would not only discourage others from copying your work, it would
also make your intentions clear if you were ever questioned. I don't
quite see how someone using a copy of your photo will financially hurt
anyone (copying your photo can't replace buying the book) - usually
the main concern is not wanting other booksellers stealing your image
to put on their websites. In any event, your sticker should be more
specific than "sample" - how about the URL of your website?

It's ok that you posted a clarification rather than a comment, but
yes, a comment would've been more appropriate to make sure ipfan would
see it. You can post as many clarifications as you like, but each time
you do, I *have* to respond to it (if I haven't bored you to tears
yet, I'm sure to do eventually 8-).

Good luck with your website - please remember to make a note on it
that, since your copy of the book isn't the one for sale, the book
they order from your affiliate may be a different edition from the
book in your photo.

Take care,
hummer

Hummer gave a well-researched answer and was very diligent in making
sure that I understood his comments.  I also appreciated the
thoughtful and respectful dialogue that transpired between hummer and
ipfan.  All answers, clarifications and comments were very beneficial.
 Many thanks!  redrock

As of July 7, 2003, within the Ninth Circuit in the United States, the
answer is that the limited  use of thumbnails is likely a fair use. 
See Kelly v. Arriba Soft,
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8E22982657C96BE188256D5C00518BF5/$file/0055521oop.pdf?openelement.
 I suggest you read the case carefully as it talks in detail about
thumbnails and fair use.  I think that you can make a good argument
that your use fits under the Kelly case, particularly if you are using
your own photos and because your use is "transformative." (Kelly
explains this term.)  If you are somewhere else in the US or in a
different country, the answer may not be quite as clear.

Under US copyright law, the Fair Use Doctrine, found at 17 U.S.C.
Section 107, holds that no permission is needed for purposes such as
criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, SUBJECT TO THE
BELOW FACTORS:

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.

Thus, if you cannot fit squarely under Kelly, you need to think about
how your use would be treated under each of the four factors if you
get sued for copyright infringement since technically you are
infringing--your defense would be the fair use doctrine.  This is not
a forum for formal legal advice, but your case seems pretty good to
me: your use is transformative, and you're not depriving the copyright
holder of any money (in fact, it seems you may actually be fostering
book sales). Can you make it so that a visitor to your site cannot
download and save the thumbnails?  That would be even better.

Dear Redrock,

Just for clarity, please understand that while you may indeed own the
copyright in photos you take, if you are capturing a preexisting image
in which someone else may own the copyright, you can likely claim no
copyright in your unauthorized copy.  Indeed, your photographing
someone else's preexisting copyrighted photograph is an act of
copyright infringement because you are, by definition, copying the
work.  The exclusive rights belonging to a copyright owner are:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works, to
perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other
audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission.  See
http://caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/1/sections/section_106.html

So let's assume Annie Liebowitz took a photo of a rock formation in
New York's Central Park.  She owns the copyright to the photo. 
Further assume she grants rights to a publisher to use her photo on
the cover of a book written by Louis Sachar called "Rocks," and the
book is circulated.  Annie still owns the copyright to the photo, and
if you take a picture of the book cover you are, by definition,
copying her photograph, and that is an act of copyright infringement. 
You thus have no copyrightable interest in the photo you took because
your act of infringement vitiates your rights in the subsequent,
derivative work you create (the photo you took).  This is why my
comment focused on Fair Use--you are infringing, and so your best
course is to make sure your use is a Fair Use under copyright law and
the Kelly case (if applicable).  If you sought to register a copyright
in a photo you took of someone else's copyrighted work, that would be
improper.  You would have to disclaim your copyright ownership in the
underlying work and only claim copyright in the new, protectible,
copyrightable elements you added, and even then only if you had
permission to make the copy in the first place.  I am assuming the
books you own and  the covers of which you wish to take photographs
have images or some other type of copyrightable content on them,
right, and not just plain typed words containing the title?  If so, I
would make sure you can bring your use under Fair Use because your
actions are technically and by definition copyright infringement.

I respectfully disagree with hummer that no one would care.  Annie
Liebowitz, for example, is very aggressive about defending her
copyrights, and if she saw a photo on the web of a book cover that
contained one of her copyrighted photographs and the picture was
posted without her permission, I think she would be upset.

Sorry hummer, just re-read your clarification, and we are agreed that
the original copyright owner would care.  You are right on.

Cheers,
ipfan

Hi ipfan,

Redrock's photo would not be for sale, nor would he be selling any
copies of it. The photo would be there for the sole purpose of showing
a book, not the photograph. Redrock would not be making a copy of a
photograph, but rather taking a photo of a book. I don't think Annie
Liebowitz would consider suing Amazon for advertising books with her
photos on the cover - why would it be any different for redrock, who
would be recommending someone buy the book? Again, redrock would not
have the photo, or copies of it, for sale - it is an important
distinction.

Regards,
hummer

Hi hummer,

I see your point, but whether the ~image~ is for sale is only one of
the various fair use factors. Technically, it is still copyright
infringement--whether or not the image itself is for sale only goes to
the strength of the fair use defense on these facts.

I agree that Annie likely would not object to seeing a book advertised
on amazon.com that has her photo on the cover--but that's very likely
because the copyright license she granted to the book publisher
included the right to sublicense people like amazon.com to sell the
book and display the image (again, technically speaking, displaying
the image is copyright infringement.)

So, I agree that the fact Redrock is not selling the ~image~ is a
helpful fact in the fair use analysis. But assume that I am looking
for a copy of Annie's rock picture on art.com and I can buy an
authorized print for $1,000.  Alternately, I can go to Redrock's site
and download the image for free, reproduce it on my color laser
printer and frame it--all the while depriving Annie of the revenue had
I purchased it legally.  On those facts, Redrock is not selling the
image, but by virtue of his copying it and making it available on his
site, Annie has been damaged and can sue.  Under fair use analysis,
that's why they consider "the effect of the use upon the potential
market for or value of the copyrighted work."  If copies of the image
are available for free on Redrock's site, even if the image is not for
sale, that all cuts against fair use.  That's why the Kelly court said
thumbnails are OK--they are hard to manipulate and enlarge, thus there
is little effect on the market for the underlying original works. 
That's why I encouraged Redrock to use thumbnails and to try to
prevent them from being downloaded--all to bolster his/her fair use
argument.

Regards,
ipfan

Hi again, ipfan, you make some interesting points.

Redrock would not be copying, scanning, reproducing or selling a book
or parts of a book. He will only be taking a photo of the front cover
and maybe the spine. The photograph is his creation and he is free to
put it on his website, however, others are not free to copy it without
his permission.

"If copies of the image are available for free on Redrock's site, even
if the image is not for sale, that all cuts against fair use."

Adding a watermark, as I suggested, will discourage copying - but
watermarks and thumbnails serve to protect the owner of the photo:
redrock. My point all along has been that redrock will not be
displaying someone else's work on his website, but rather his own.
Have a look here (courtesy of Kent Univ):

True or False:
8. It is illegal to scan images out of a book or magazine to one's web site.
8. (Answer: True) 	
You can't freely scan images from a book or magazine. You can however
scan your own photograph or images you have created to your web site.
http://literacy.kent.edu/Oasis/Workshops/copyanswer.html

Regards,
hummer

Dear hummer,

I am enjoying our dialogue immensely--I hope Redrock is benefiting
from our digressions!

We seem to be in disagreement over the fundamental issue of the legal
effect of Redrock's taking a photo of a book cover and then posting
that photo (that he took) on his website.  My position is that that
activity is, by definition, unauthorized copying, and thus he should
be careful to fall within fair use.  I ~think~ you disagree with me
that Redrock is "copying," as evidenced by your comment, "Redrock
would not be copying, scanning, reproducing or selling a book or parts
of a book.  He will only be taking a photo of the front cover and
maybe the spine."

Let me try it this way:  assume Redrock makes, using a normal
photocopier, a color photocopy of the
picture/photograph/drawing/whatever on the front cover of a book that
he owns.  That is clearly an act of copying and an act of copyright
infringement--he has infringed the exclusive rights of the person
owning the copyright in and to the picture/photograph/drawing/whatever
on the front cover.  It does not matter that he is not selling the
photocopy that he made.  Further assume he now scans the unauthorized
photocopy into his computer, creates a jpeg, and places that jpeg on
his website.  He is now publicly displaying the unauthorized copy--the
fact that he may "own" the copyright in the photocopy is irrelevant
and, as discussed below, incorrect on these facts.

This is no different that taking a photograph of the cover art?-on
those facts, Redrock is making a copy with his camera--he is using a
camera instead of a copying machine to make the unauthorized copy--the
legal effect is the same.  The copyright owner does not care about the
instrumentality used to make the copy, whether is be a photocopy
machine, a scanner, a camera, or a hand-made pen and ink sketch.  A
copy is a copy is a copy.

So, to your point that, "redrock will not be displaying someone else's
work on his website, but rather his own[,]" I respectfully disagree. 
I believe that he actually will be displaying someone else's
work--indeed, an exact copy, made with a camera, of someone else's
work.  If a copy is unauthorized, the person making the unauthorized
copy cannot lawfully claim he owns a copyright in that copy.  If I go
to my local art gallery and take a digital photo of an Ansel Adam?s
print hanging on the wall and take that image and post it on my
website and state that I own the copyright in that photograph, do you
think Ansel Adam?s heirs would not object to that?  Sure they would,
and they could properly sue me for copyright infringement.

Now if Redrock went out and took a photo of the exact same rock
formation in Central Park that Annie Liebowitz photographed in my
first hypothetical, THEN he would indeed own the copyright to that
photograph.  If he takes a photo of Annie's photo, however, it is
problematic for him to claim ownership of the copyright in the photo
and he has infringed her copyright.

Regards,
ipfan

Dear ipfan,

"I am enjoying our dialogue immensely--I hope Redrock is benefiting
from our digressions!"

...if we haven't put him to sleep yet 8-)

Ipfan, I have been thinking long and hard over your comments and I
decided to go back to square one and think about uploading images of
books from a personal collection. Have a look at the following
website, and look at all of those images in the Gallery (!). This
website is a good example because he not only uses images of his own
books but he's also affiliated with Amazon -

Notice & Disclaimer
"The Hardy Boys® is a registered trademark of Simon & Schuster Inc.
This site is not affiliated with Simon & Schuster in any way and is
maintained for entertainment and reference purposes only. I can not
guarantee the accuracy of the data contained on this site nor will I
be responsible for any errors which may result from the use of the
information supplied herein. No portion of this site may be reproduced
or quoted in any media for any reason without the written permission
of the copyright holder.
All images and/or scans are from items in my personal collection
unless otherwise noted."
http://users.arczip.com/fwdixon/

Hardy Boys Cover Art Gallery: Help Support This Page: 
"Your purchases from Amazon.com help support the Hardy Boys Unofficial Home Page."
http://users.arczip.com/fwdixon/hbart.htm

Redrock, I neglected to remind you to make sure to include the
copyright information, name the cover artist for each book, include a
note about the photos being personally yours and a statement about who
owns the copyright for The Hardy Boys:

Dustjacket art by W.S. Rogers.
NY: Grosset & Dunlap (©1956). Third printing.
The Hardy Boys® is a registered trademark of Simon & Schuster Inc.
All images are from items in my personal collection unless otherwise noted. 

Add some watermarks to your photos so that noone can copy them, and I
think you will be all set. I can't for the life of me imagine who
would sue you for taking photos of your own books with no intentions
of reproducing them. However, if you are worried, give a copyright
lawyer a call and see what he has to say - at least now you can ask
educated questions instead of going in cold.

Thanks to you both for this interesting thread,
hummer

Thank you for your thank you, redrock, and the nice rating and tip -
I'm glad to hear that we were able to help you out. Sincerely, hummer