I am building training curriculum to sell that is based on material from existing books and want to use the title and image of the book in my marketing material. I'm not representing myself as the author or being authorized. I'm just saying the contents is based on the material in the book and they would still need to read the book to get the full gist.
The training just distills applications of the book, but because it is so summarized, doesn't include actual text from the book.
Interesting question. First, describing in course materials that you are using a particular book would not be copyright infringement; titles are not copyrightable. The author might claim copyright infringement if you a photograph of the cover, but you probably have a good defense of fair use. However, as you point out, this works to the author's advantage -- the author wants people to buy the book, and you are helping to create demand.
Still, contacting the author could be good for both you and the author, who might give you some insights in a few issues. Most authors would consider it a compliment to be approached that way, and it is more likely to be mutually beneficial. If you still have any questions, don't hesitate to contact us or one of the Avvo.com lawyer contributors.
www.bayoaklaw.com. 510-208-5500. This answer does not create an attorney-client relationship. It is not legal advice, because it is only of a general nature. Please contact a lawyer qualified in your jurisdiction to discuss your situation in confidence, using your factual details. Avvo answers are only general legal responses. Item 9 of Avvo.com's Terms and Conditions are incorporated in this disclaimer as though it were printed here.
I would caution you against the use of the title and image of the book in your marketing materials. Even though you don't claim to be the author of that book, making a claim that your work is based on that book could create the false impression that it is licensed by or affiliated with it.
I would say you have much less of a copyright problem than a trademark problem. You should consider whether there are others already doing something like what you want to do. If not, then there is probably a good reason.
i believe that the safest course of action is to contact the publishers of each of the books and obtain their consent. They may have collateral materials or agreements that you are not aware of that would prevent your endeavor (e.g. an agreement that the author is owrking on a training curriculum not yet published.) They may be enthusiastic about your project and offer to publish. My colleagues are accurate about their observations about copyright and independent issues of "implied endorsement."
The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
Query Avvo's database of legal questions and answers for "study guide." When you read the attorney responses you'll find that the issue you face is whether your training curriculum is an unlawful "derivative work" of the already-existing books. Very generally, a work that is, as you say of yours, "based on the material in the (already-existing) book" is a derivative of the already-existing work -- which, to publish lawfully, requires its creator (in this case you) to acquire a license from the owner of the copyright in the already-existing work.
The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
I agree with my colleagues that this would very likely be deemed to be an unlicensed derivative work under copyright law as it is clearly based upon an exisiting copyrighted work. If so, your materials would infringe upon the other author's copyright. The fact that you admit that your work is based on the other book of course bolsters this claim.
The use of the title would support the derivative work claim. I would also want to know how well-known the other book is and whether it is part of a series of books (e.g. "7 Habits of Highly-Effective People"). While a title is not copyrightable, a very popular title of a single book is often protected through state and federal unfair competition law. A popular title of a series of books is generally registered as a federal trademark. Thus your use of the title could also give rise to claims of unfair competition or trademark infringement. As for the image, I don't know if you mean a copyrighted photograph or just a logo. Either way the use could be either copyright or trademark infringement. In sum, there are so many potential legal issues with your proposed materials that your best bet is to contact the other author, as has been suggested, and enter into a licensing agreement with him if he is willing to do so.
I believe you should be concerned about both copyright and trademark infringement. I agree with the prior contributor who stated that using a photo of the book creates a false impression of sponsorship or approval. This actionable under both federal and state law. While titles are not protectable under copyright law, they are under some circumstances under trademark law. Further taking a photo of the book may well constitute copyright infringement. There is no fair use defense for commercial speech where you are trying to profit from someone's copyrighted work.
All that said, ideas are not protectable except in very limited situations. Only the specific expression of those ideas may be protected. You are free to use the facts expressed in a book, where these concepts or facts are available from multiple sources. But you cannot copy significant portions of the materials.
Without having more information I cannot suggest how much is too much for you to utilize from this book.
Good luck on creating something that is new to you, or seeking the appropriate permissions.
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