Is it ok to re-illustrate a current novel? (copyright question)
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So, this afternoon I had an idea for three new illustrations that I think I could really sink my teeth into: I have listened to three intriguing middle grade audiobooks in the past month. They have cultural/historical differences, but thematic similarities, and I even know that I would choose a moment from the beginning of one book, an important moment from the middle of the next, and the high point near the end for the third. I was thinking they might make a nice black and white trio for my portfolio! I'm interested in doing middle grade work.
My question is, since these are all recent books and they already have existing cover art (really nice cover art, too!), is there any way I can get in trouble with either the cover illustrator or author for doing an interior illustration for them? I guess it’s a little bit like doing fan art, but mainly I liked the idea because it was a good chance to the kind of work that I would like to receive, and because these stories evoked strong images in my mind.
What do you think? Thanks!
P.S. Tagging our resident expert, @davidhohn!
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@LauraA Ooh I remember this being brought up a while back in another thread, and David had some advice I’ll see if I can find it. There’s also a 3pp episode where they touch on fanart in a portfolio but they didn’t mention copyrights.
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https://forum.svslearn.com/topic/12495/creating-my-version-of-a-book-cover?_=1657379176971
I think it’s this one! -
@Asyas_illos Thanks! I read through it, but it's still a little unclear to me. David did say:
"Copyright of text vs copyright of images.
The copyright of a text is distinctly different and separate from the copyright to the illustrations of that same text. So if you want to create a visual depiction of an unillustrated text (a text currently protected by copyright or in public domain) you are free to do so."
What complicates my situation is the existing cover art. One book even has illustrations, though I haven't taken a close look at them (because I listened to the audiobook versions). My character might even look similar to the one on the cover, but that would be because they would fit the description in the book. And my art is not as stylized as Anna Daviscourt's.
But my intention, really, is simply to try illustrating different moments from similar books. I really like the idea. I just don't want to do all that work and then get in trouble for it!
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@LauraA I totally get it, it seems there is a very fine line, I think if you are not going to plaster it all over the internet and you’re just doing it for personal experience then go for it, but yah, it’s definitely a touchy topic!
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@LauraA since we're not experts or copyright lawyers on this forum, you'll get the best answers by consulting an IP attorney and/or researching copyright law on copyright.gov.
Your question really is about fair use. Is it copyright infringement to illustrate part of another person's story without their permission and show it in your portfolio?
You may want to check out this article on Legal Zoom about avoiding copyright infringement and Fair Use FAQs and Section 107 of the Copyright Act from the U.S. Copyright Office.
Hope it helps you find an answer and a way forward.
Just a thought: are these scenes that you want to illustrate integral or obviously part of these books? Could you use the books as inspiration to come up with your own original story and illustrations? That way you would sidestep this issue altogether.
illustrator - author - smiley person
mbaileyart.com
instagram.com/mbaileyart/ -
@Melissa_Bailey thanks for sharing these links
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@LauraA My personal take on this is that if you don't earn money from it, then you're safe. your work will just be considered fanart.
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@LauraA Been away on a trip and so only able to give my opinion on this now.
As @Melissa_Bailey said, I'm not an IP attorney. For actionable advice definitely contact one. This is the kind of straightforward question that most would likely answer for free.
My question is, since these are all recent books and they already have existing cover art (really nice cover art, too!), is there any way I can get in trouble with either the cover illustrator or author for doing an interior illustration for them?
My understanding of the copyright implications of your question:
In trouble with the author: No, you can't get in trouble for creating YOUR interpretation of an author's copyrighted text. (if that text or the character has been trademarked it gets more complicated)
But any detail specifically mentioned in the text is fair game for you to include in your text.In trouble with the illustrator: Probably no, but there is more of a grey area here. The original illustrator created their character design based on specific things mentioned in the text. But they also made a ton of other decisions that give the character a unique personality.
For example, the text says the main character has "pink hair and wears glasses"
The original illustrator made the hair pink (as per the text) but ALSO made it in long curls. The original illustrator gave her glasses, but made them olive-green cats-eye glasses.If your illustration of the main character clearly had long curly pink hair and green cats-eye glasses (essentially copying all the creative decisions the original illustrator made) the original illustrator could make a reasonable claim of copyright infringement.
On the other hand if your character had pink hair that was short and straight, and had glasses that were round wire-rimmed you'd be just fine.
To stay clear of a copyright infringement claim you would want to illustrate a scene different from the cover art with character designs/settings that clearly don't rely on the creative decisions of the original illustrator
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Your question really is about fair use. Is it copyright infringement to illustrate part of another person's story without their permission and show it in your portfolio?
This might come off as pedantic, and I apologize if so, but illustrating a text is not a fair use question.
Fair Use is better thought of as a "Fair Use Defense" as in -- I know this is a copyright infringement, but I think it should be allowed because [insert reason here].
But that's not what's happening here. The copyright to a text and the copyright to an illustration of that text are two separate pieces of intellectual property.
That said, great links to discussion of Fair Use! It is an aspect of copyright law that it is always a good idea to get a clear understanding of.
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@davidhohn Thanks! I think your response gets at what I'm trying to do. I am trying to illustrate scenes that aren't on the cover, and without looking at the cover art any more than purely necessary (it's kind of hard to avoid the cover, though!). I purposely chose scenes that would require me to come up with my own interpretation, and I am using the descriptions of the characters from the texts.
Apart from getting into strictly legal trouble, I also don't want to offend the original illustrators, because obviously I think we illustrators should respect each others' work. But my inspiration for doing this series was just, "Hey, I checked out three books in a row and by chance they were all ghost stories, but very different ones!" I liked all three books and they put a lot of mental imagery in my head. So why not draw it out since this is an area of illustration that particularly interests me? I just don't want to put a lot of work into something only to cause trouble.
At any rate, I'm now well into the ideation phase in two out of the three, so perhaps I'll be back with some thumbnails or roughs soon.
Thanks also to @Nyrryl-Cadiz @Melissa_Bailey and @Asyas_illos for your input!
The irony of all of this is that my husband is an intellectual property attorney, but being an attorney, he never wants to speak on any matter that's even slightly different from his specialty, and since he doesn't do illustration, he doesn't want to say anything: So you guys probably know more than he does just from experience!
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@davidhohn no offense taken at all. As I said, I'm not an attorney, nor am I claiming to be an expert on copyright law. It's completely possible that I'm wrong on one or more of these things. Maybe you could share your sources so that we can all read them and educate ourselves?
All that being said, I respectfully disagree with you. In certain cases, it's possible that a lawyer could argue that illustrating a text could be a question of fair use. And it's also possible that in certain cases a lawyer could argue that illustrating a text is copyright infringement.
Copyright.gov defines copyright infringement: "As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner." (Italics mine.)
Illustrating a text could fit the definition of a derivative work -- it is telling the author's story in a different media or form. True, it is not in written form, but neither are audiobooks or movies, and those are considered derivative works of a text.
Interesting side note: fan art is considered derivative work, as it uses the characters, story, settings, etc. of other copyrighted works. According to attorney Linda Joy Kattwinkel, "Unauthorized derivative works will be deemed copyright infringements, unless the original work is not protected by copyright (it could be old enough that copyright has expired, or it could be a U.S. government work), or the derivative work qualifies as fair use." In the same blog post, she says, "While this practice is widespread, it is not necessarily legal." The entire post is really interesting, especially her best practices advice. And as a second source, check out this Law Soup post.
There are definite correlations between fan art and this specific situation of re-illustrating a published novel. Could it fit the definition of fan art? Hmm... Yeah, it probably could. Both would be based on and incorporate elements from a copyrighted work. Both would make use of an author's intellectual property: the story, characters, world, etc.
And using copyrighted work most of the time requires permission. Unless it's fair use.
Regarding derivative works, Copyright.gov states: "Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work. The owner of a copyright is generally the author or someone who has obtained the exclusive rights from the author. In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any part of the work in which such material has been used unlawfully. The unauthorized adaptation of a work may constitute copyright infringement."
Regarding fair use, also Copyright.gov: "Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use."
So looking at it a certain way, the question could be: does it constitute fair use if I illustrate a portion of this text to display online in my portfolio? Does it fit the criteria? If it is not fair use, then should I get permission to use this author's text to create illustrations of their story?
These questions could also be asked: Would illustrating this text make it a derivative work? If so, would that constitute copyright infringement if I do not get permission from the copyright holder?
Again, I'm not a lawyer and this is NOT legal advice. But based on the above information, I think that an argument could be made that illustrating the text of a novel does not constitute fair use, and that it is a derivative work that would require permission from the copyright holder.
It probably would depend on the case, how much of the work is used, how the law is interpreted by the consulting attorney, and if it goes to court, how that particular court rules. As my old standby copyright.gov says: "Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission."
So does that mean that compelling arguments could be made on either side? Isn't that an even stronger reason to consult an IP attorney on this issue? Someone who actually knows copyright law better than us illustrators?
illustrator - author - smiley person
mbaileyart.com
instagram.com/mbaileyart/ -
@Melissa_Bailey Happy to clarify this concept. It's an important one!
Your post is impressive and you really investigate the question, but you come at it with the idea that the Fair Use Defense is somehow involved. And in the case of this particular question it isn't.
The copyright to a written text and the copyright to the illustration of that text are separate. The author controls the copyright to the text. The illustrator controls the copyright to the images.
This is unequivocal. It is a fundamental aspect of copyright law. It is the reason that all picture books have a copyright page in which the text is registered to the author and the images are registered to the illustrator.
I searched for various sources and found these to be the most relevant:
https://www.sidebarsaturdays.com/2020/01/18/https-wp-me-p7vddb-ib/
Typically, cover art for a self-published book is created either by an independent artist, a book cover service, or the author. Most writers tend to think that because an author paid someone to create a book cover the author owns the rights to use it. Under U.S. Copyright law, this is not the case. The independent artist who created the book cover owns the copyright.
https://creativelawcenter.com/book-cover-art-ownership-use-copyright/
In both traditional publishing and indie/self-publishing, the cover art is a piece of intellectual property separate from the book itself. And in both cases, the ownership of the cover art and how it can be used is controlled by the interplay between copyright and contract law.
https://theartistsjd.com/book-illustration-copyright/
“Congrats! You’ve been approached to illustrate a book.
But now you start to worry about copyrights. Will you own the copyright in your illustrations? How do you keep them? How might you lose them?
The short answer is the copyrights are yours!This same lawyer has a nice YouTube video discussing this:https://youtu.be/MArW82E3Qyo
Your take aways from the various sources on derivative works and the Fair Use Defense aren't wrong -- but they don't apply to @LauraA OP question. So I'm going to avoid responding point by point in this reply because I think it would just muddy the discussion.
That said, if you'd like to chat about them one at a time I'm happy to. I'm a big fan of Linda Joy Kattwinkle! I was instrumental in getting her to join the SCBWI web boards (when those were a thing) as their legal consultant and she's taught me a ton!
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Referenced by
LauraA
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@davidhohn For what it's worth, my husband (who came back from the US yesterday) said that doing illustrations based on these shouldn't be a problem as long as I don't copy the covers in any way, that I could always take it down, and of course that he's not a copyright attorney. Of course, he's not considering either cancel culture or the fact that I'd have done a lot of work on the set!
Thumbnails for all three stories below!
