Authors write books; publishers sell books. Under a traditional publishing model, publishers take full responsibility for converting a manuscript into a book on a shelf or eReader, including fine-tuning design and content. Under a self-publishing model, authors often use online resources to accomplish these functions, only to find themselves embroiled in legal disputes over unauthorized use of images. In this interview with Tatia Gordon-Troy, Owner of Ramses House Publishing LLC, we learn how an author may successfully self-publish and avoid intellectual property pitfalls.
Ms. Gordon-Troy has a background in journalism, publishing, and the practice of law. She defines self-publishing as authors taking on responsibility for “not just writing their book, but producing the actual pages, the design work that goes into the cover and the pages and getting the book actually into stores.” Most self-publishing authors do not have the skills to accomplish each step of the publishing process, so Ms. Gordon-Troy provides guidance. Some self-publishing authors, excited by the adventure or limited by cost, dive-in, headfirst, without a guide. Self-publishing authors often contract with a freelance designer or search and download images from the Internet for use on their front cover and back covers, as well as for use on their pages. Ms. Gordon-Troy questions, “Where did you actually get the images? If you don’t know where that image came from, maybe that image is not in the public domain. Maybe you can’t use that.”
If an image is on the Internet, isn’t the image free to use? No, it is not. It is not uncommon for Ms. Gordon-Troy to work with self-publishing authors who misused images, yet “they don’t understand why they can’t use certain things.”
Copyright law grants an artist of an original, creative work the exclusive right to copy and distribute the work. The Fair Use Doctrine may provide a defense against a copyright infringement claim for a self-publishing author who copies or distributes a graphic image without authorization. Under the Fair Use Doctrine, an unauthorized use of an original, creative work may be a fair use in view of the following four factors:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
However, whether an unauthorized use of a creative work qualifies as fair use may be unclear. In a copyright suit between Russell Brammer, a photographer, and Violent Hues Production, a film festival producer, over Violent Hues Production’s unauthorized use of a photograph, Violent Hues Production successfully raised a Fair Use defense at trial, which was overturned on appeal. In a copyright suit between Lynn Goldsmith, a photographer, and the Andy Warhol Foundation (AWF) over Andy Warhol’s unauthorized use of a photograph of Prince, the AWF successfully raised a Fair Use defense at trial, which was overturned on appeal. Rather than chance copyright infringement claims and having to raise a Fair Use defense, Ms. Gordon-Troy suggests a pragmatic approach for self-publishing authors. If a self-publishing author can’t trace an image back to its source and “know whether the image’s license will allow you to use it in a commercial way, then we have to go elsewhere and start from scratch.”
Ms. Gordon-Troy appreciates that “there are a lot of pitfalls involved in self-publishing, that people aren’t aware of.” Authors may shy away from self-publishing in light of the potential intellectual property pitfalls. Ms. Gordon-Troy works with self-publishing authors to identify image licenses available to self-publishing authors and images available in the public domain. For example, The Library of Congress maintains a Free to Use and Reuse Sets database of images in the public domain. As part of the public domain, these images are available for use without a license. Ms. Gordon-Troy and her team help self-publishing authors anticipate and mitigate intellectual property issues associated with self-publishing.
I want to thank Tatia Gordon-Troy for sharing her window into the self-publishing world and intellectual property pitfalls associated with self-publishing. To learn more about Ramses House Publishing LLC, please visit Ramses House Publishing LLC.
Hutchison Law, LLC has experience protecting intellectual property rights, such as preparing and filing applications to register copyrights and trademarks. To learn more about our intellectual property practice, please contact us at 410-978-7287 or info@hutchisonpatents.com.
© 2021 Hutchison Law, LLC. All Rights Reserved. Content provided herein is for informational purposes only and should not be construed as legal advice.
