I have The Sports Art of Bart Forbes book. The book itself is not in any condition to be sold as it is. I own the book outright. I would like to take the pictures from it and sell them. I of course would give the proper credits to the artist and notate the book and information pertaining to the print. No photos or copies would be made, each straight from the original book. Is there anything I need to be aware of regarding copyright or anything that resembles it?
Selling a photograph cut from a book is lawful under copyright law [so long as it’s not modified in any way – even by framing].
But like the hundreds of pages of reasoning required to ultimately prove 1 + 1 really equals two, that conclusion can only be reached after working through some law.
The copyright analysis goes like this: The "first sale” doctrine [codified at 17 USC 109(a)] provides that the owner of a copy of a copyrighted work may lawfully sell or give away that particular copy without infringing any rights retained by the copyright owner. The doctrine, however, limits ONLY the copyright owner's exclusive right to distribute the entire work but not any of the other rights he retaines: such as the exclusive rights to reproduce, display, and to prepare derivative works based on his work. See Precious Moments, Inc. v. La Infantil, Inc., 971 F.Supp. 66, 67-68 (D.Puerto Rico,1997).
The relevant rule, therefore, is that while the owner of a copy of a copyrighted work [you] may sell or give away his copy, he’s NOT free to create and sell derivative works created based on his copy. See Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1344 (9th Cir.1988) (framing photographs cut from a book creates a derivative work of the photograph and, therefore, infringes the copyright in that photograph).
The question in your case is whether cutting a photograph from your copy of the author’s book makes that photograph a derivative work – of the underlying photograph, not of the book. The answer to my mind is clearly no. Even Mirage Editions did not go that far. See also, Lee v. ART a/k/a Albuquerque ART, 125 F.3d 580 (7th Cir. 1997) (framing a piece of art does not make the result a derivative work of that piece of art); Peter Letterese And Associates v. World Institute Of Scientology, 533 F.3d 1287 (11th Cir. 2008).
Copyright law declares: “A ‘derivative work’ is a work based upon one or more preexisting works … [in any] form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’” 17 U.S.C. 101.
Cutting a photograph from a book does not recast, transform or adapt the photograph [though it does the book] and, any event, because the removal does not add any creativity to the photograph the removed photograph is not an “original work of authorship.” So it’s not a derivative work.
But that’s not the end of the story. The creators of certain works of visual art [perhaps Bart Forbes] can also own “moral rights” in their works that are above and beyond mainstream copyright. In short, they own the right to prevent their works from being intentionally distorted, mutilated, or otherwise modified in a way that would be prejudicial to their honor or reputation. 17 U.S.C. 106A. The photographs you want to sell are of Bart Forbes’ paintings and drawings. Can he assert a Section 106A moral rights claim against you for cutting out and selling individual photographs of his art from his book? Probably not [see 17 U.S.C. 106A(c)(3)]. But maybe.
Speak with your own Texas-licensed intellectual property attorney before you offer any of the removed photographs for sale. Good luck.
The above response 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 am not sure that the authors would not object to what you are doing as a mutilation of their copyrighted work. If you want to proceed to do what you are asking, I would reccomend that you obtain an opinion from an experienced copyright counsel that you are clear to separate and sell these pictures seperate from the book, without fear of copyright liability.
For more detailed advice, I recommend that you contact an experienced Copyright Infringement Litigation attorney to advise you in confidence about your options and potential costs. Many IP specialty firms, like ours, offer an initial free conference by telephone, video conference or in person if you are available locally and would be happy to speak with you. Call and speak with an experienced Copyright Infringement attorney who can assist you.
Mr. Sack's postings on Avvo are of a general nature, based on the facts provided and are not intended to be taken as legal advice or to establish an attorney-client relationship.
You have to think of copyright as in layers. The first sale doctrine protects you from infringement claims for reselling the book. But what we don't know are the myriad IP rights that are bundled into that book. For example, an author might license an image to be used in her book. As a consequence that license trails each sale of the book, no problem. This however does not mean that you get to separate out various licensed images and sell them piecemeal. This could potentially make you liable to the actual copyright owner of those images.
I don't think your exposure here is very high, but I suggest that you consult with a lawyer in private and discuss your objectives in more detail before jumping in. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
You've received thorough advice from my colleagues, so we needn't beat the dead horse. I'll just add that it wouldn't hurt for you to take advantage of those attorneys in your area who offer free consultations so that you can disclose your particular fact scenario in confidence.
Answers provided by Mr. Robinson are for informational and educational purposes only and by no means constitute legal advice or counseling of any kind.
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