I have a written a book (http://www.lulu.com/content/214940) and
recently my publisher has ceased publication of it because they
recieved a complaint from someone saying they did not give me
permission to reproduce the picture, despite the fact that 1) it is my
picture taken with my camera and 2) it is photoshopped [and cropped]
beyond any recognization as to who is in the picture. The picture in
question is here: http://www.lulu.com/items/volume_13/214000/214940/7/preview/zoom_214940.jpg
and the original picture from which it was photoshopped:
http://img159.imageshack.us/img159/9163/p10100037ck.jpg
Even if I wasn't give permission to have a picture with that person in
it, wouldn't I be covered by fair use laws?

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Clarification of Question by xen0blue-ga on 22 Mar 2006 00:45 PST

First off, all I know is my publisher emailed me saying that they have
stopped publication of my book because "it has come to thier
attention" that I am using a photo I didn't have permission to
reproduce. Now, since it is my picture taken with my camera and is my
image, I know no one else is claiming they own the image, and it is
probably my mother (who is depicted in the picture). Long story short,
she disowns me because I exist (I am not even exaggerating) and this
is probably her way of stopping the message in the book from getting
out.

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Clarification of Question by xen0blue-ga on 22 Mar 2006 22:20 PST

OK, apparently the publisher says someone (my mother) e-mailed them
complained it violated thier right to privacy and publicity. But the
thing is, the image is so blurred, The only way you could even tell
who it is is if the person saw the original picture.  Now you tell me,
if you saw that person in the photoshopped image walking down the
street, would you really be able to recognize them just from looking
at the cover? I think not.

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Request for Question Clarification by hedgie-ga on 22 Mar 2006 23:27 PST

While we cannot give legal opinion here, 

perhaps I can correct two misconceptions:

Taking a picture with 'your camera' does not make it 'your picture'

 Mechanical Reproduction (of copyrighted work) is prohibited 

and

If you use it on a cover of a book - part of a commercial product

you have no 'fair use' rights.

On the other hand, the photo you are using looks so different, compared to the
original, so that (unless you admit it) it is hard to prove that it is
an derivative work.

Perhaps you can produce a similar photo for you cover, which would 
be an original, or based on some  public domain photo?

Would that be more productive then arguing with your mother?

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Clarification of Question by xen0blue-ga on 23 Mar 2006 03:45 PST

If the person is unidentifiable, that would release me from all
liability because it dosn't violate thier privacy, correct?

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Request for Question Clarification by hedgie-ga on 23 Mar 2006 14:25 PST

No.

It is still a derivative work, if you start with a protected original.

It just is dificult to proove it, unless you admit that.

are you wedded to that image or could you change the cover to comply
with lulu's desires?  personally i think it's silly and clearly no one
would EVER know who that is, but if you aren't like in LOVE with that
cover 110%, I'd just change it and move on...(this from a person who
is currently asking a copyright question herself, lol).

A few questions/comments to perhaps help folks toward an answer:

(1) You say the publisher received "a complaint from someone saying
they did not give [you] permission to reproduce the picture."  To
clarify: is this complaint from another photographer who thinks he/she
took the picture and that you're mis-appropriating it? Or is this a
complaint from someone depicted in the picture who is claiming he/she
never signed a model's release form or otherwise granted permission to
be depicted in a photograph that's used for commercial purposes/

(2) You ask "wouldn't I be covered by fair use laws?" If you feel that
Fair Use applies to your case (and can convince your publisher of the
same) then proceed. But remember that Fair Use "laws" are purposely
written vaguely so that each case really has to be looked at on its
own merits. Moreover, claiming Fair Use is really an affirmative
position, so the only way to know for sure if Fair Use applies in your
case is to get sued; go to court; argue "I didn't infringe on someone
else's copyright because my usage counts as Fair Use for such-and-such
reason"; and have the court agree with you. Maybe you don't want to
take those sorts of chances with your work. (Anyway, since a book
cover is usually seen as a commercial use, it doesn't seem likely that
a "Fair Use" claim for such a use would hold as much water as more
acceptable kinds of Fair Use like satire or reportage...)

You are totally within your rights. They have no case against your use
of the picture.

It should be pointed out that nothing posted on G-A is legal or
professional advice  - see the disclaimer below  -  including the
following.

"Fair use" would not apply in this case.  One definition:
"The right set forth in Section 107 of the United States Copyright
Act, to use copyrighted materials for certain purposes, such as
criticism, comment, news reporting, teaching, scholarship, and
research. ..."
www.library.yale.edu/~llicense/definiti.shtml

I was wondering if you could photoshop another photo to approximate
the title photo closely enough to argue that the claim was incorrect,
but you have blown your cover already.

When you say it is your picture taken by your camera, do you mean that
you took it? If you took the picture, and were not in the employ of
another person while doing so, you own the copyright on the photograph
and can reproduce or use it as you wish. If you lent your camera to
someone and they took the picture, it is their work and they control
the copyright. If you do not own the copyright on the image, no amount
of Photoshop will stop it from being a derivative work, and if it is a
derivative work you do not have the right to use it for commercial
purposes under most Western copyright laws. However, if you took the
picture, and the copyright is yours, it can be of whoever you want and
you can reproduce it as much as you like. Your work is your work, no
matter who it depicts.

You write: "Now, since it is my picture taken with my camera and is my
image, I know no one else is claiming they own the image, and it is
probably my mother (who is depicted in the picture)."

OK, we might be getting somewhere with this.  Although it is true that
if you were the photographer who took the photograph, then you own the
copyright to that image.

But it's also true that a person has some measure of rights to control
the use of their own image. The exact extent of these rights vary from
jurisdiction to jurisdiction, but those rights do exist--that's my
professional photographers require their models to sign release forms,
after all.

If your mother is depicted in the picture, and if she's claiming that
she never signed a release authorizing the use of her image in that
picture or if she's claiming that the use of her image is offensive or
defamatory to her, then she can probably make a case for that
argument. An if she's raised those sorts of objections with your
publisher, then it's understandable why your publisher, not wanting to
get dragged into a legal hassle, would prefer you use some other
image.

Of course, if your mother is making that sort of case, you could
counter-argue that the image is permissible for whatever reason
(because it's photoshopped beyond reasonable recognition, etc.) The
question, then, is if you really want to go through the hassle of
kmaking that argument to your publisher and, if necessary, in court.

Anyway, if your intuition is correct, and the reason your publisher's
raised the issue has to do with your mother objecting to her image
being used as a book cover, then the issues you're dealing with are
less about the copyright to the photo per se, but more about the
rights of a person to control his/her image, and that's a whole
different can of worms.

OK, based on your latest clarifications, it seems that, realistically,
the question you're facing isn't really "Is it permissible for me to
use this photo, altered as it is?"

The question you really need to answer is "Is fighting over this image worth it?"

Even if you're completely within your legal rights to use this picture
as the cover of your book, your publisher (obviously) has some
concerns and would rather you select some other image.

If you're certain your usage of this image is permissible, will you be
able to convince your publisher (by indemnifying them in writing, or
by other means they will find convincing)? How much effort will it
take you to convince your publisher? Is it worth the time and effort
to you?

And even if you're convinced your usage is permissible and you do
convince your publisher, your mother could still object. She could
even start legal action, which you'd have to respond to in court. Do
you think it likely that she would do so? If she does, are you willing
to go through the time and effort (and expense) to respond to her
claim? Is it worth it to you?

The disclaimer below reminds us that the comments and answers given
here are no substitute for professional advice. But in your case,
since your question is rapidly boiling down to your personal
opinion--is it worth it to *you* to use this image that, despite
seeming to be permissible for you to use, is nonetheless problematic
for you to use--it's really going to come down to a matter of your own
decision.