I AM NOT AN ATTORNEY AND THE INFORMATION HERE IS NOT LEGAL ADVICE. CONSULT WITH YOUR ATTORNEY IF YOU HAVE QUESTIONS ABOUT USING PHOTOS ON YOUR COVER.
Last week, the story broke about a couple suing an author, Amazon.com (the publisher, though their CreateSpace division), Barnes and Noble, and Apple because their engagement photo was used on the cover of an erotic novel. The lawsuit says the book is “less than tasteful” and “offensive.”
Now, I have nothing against erotica but I do know I wouldn’t want the most romantic moment of my life splashed on the cover of a book containing phrases like “out comes his stone pillar of a (part of the male anatomy)” and “my quivering flesh, open and available.” You get the picture, right?
While the story did not, of course, state how the author, publisher, or cover designer obtained the photo, it may have been pulled from the Internet by someone and used without permission, or it may have been purchased from a stock photo site. I suspect the former. (It’s highly doubtful that the couple gave permission, and later filed a frivolous lawsuit.)
While we don’t yet know how the photo was obtained, anyone with any sense knows you can’t grab a photo from the Internet and use it for profit without permission from the copyright owner (that’s usually the person who took the photo). The couple are both in the photo so someone else likely took the picture. That’s probably why copyright infringement isn’t part of the lawsuit, but it is mentioned. Of course, the person who took the photo can sue separately and damages for intentional copyright infringement can be VERY high.
If the photo appeared on a stock photo site, even if the author, publisher or designer purchased the photo legally, they can still be sued, and lose. Why? Here’s an example. iStockPhoto’s contract clearly states:
Prohibited Uses. You may not: use the Content in a fashion that is considered by iStock (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute…
Unfortunately, many cover designers and authors who would never willingly violate a copyright, and who are happy to legally buy a photo, don’t bother to read the fine print on the stock photo sites.
At BookLocker.com, our cover designer ) has always been sensitive to this rule.
The fact that this author and/or her designer (allegedly) did something so dumb (sorry, there is no other word for it) is mind-boggling.
Your novel doesn’t have to be erotic in nature to get you sued. What are some other examples of photos you can legally purchase, which can potentially lead to a lawsuit?
- Using a real child’s photo on the cover of a novel or a non-fiction book about child abuse.
- Using a person’s photo on the cover of a book (fiction or non-fiction) about sex trafficking, the adult entertainment industry, sexual preferences, abortion, AIDS or other sensitive topics that might bring embarrassment to the person portrayed on the cover.
- Using a person’s face on the cover of your book about high profile crime, implying that person is the actual criminal.
- Using a real person’s face on a book that discusses sensitive or embarrassing medical or psychological topics (plastic surgery, problem acne, obesity, divorce, mental illness, and much more).
The list goes on and on. If there is even a remote possibility that the photo could embarrass that person for any reason (and that reason does not need to be sexual), do NOT use their photo, or anyone else’s!
I predict the part of the lawsuit against the author and Amazon will proceed since Amazon’s CreateSpace division is listed as the “publisher” of the book. If one of their designers created that cover, they’ll have a difficult time getting out of that hot water. According to the news story, Amazon is denying being the publisher of the book. Ha ha. I wish them luck explaining that to the judge when he learns they own CreateSpace, which, again, is listed as the “Publisher” on the book’s page on Amazon.
I also predict Barnes and Noble and Apple will be dismissed from the lawsuit. Barnes and Noble is selling the Nook version and Apple is selling the iBook version. They are serving only as retailers, and should not have been sued in the first place.
Incidentally, the book’s cover on Amazon now has a different couple’s picture on it. I bet the author or her designer made sure to get special permission for that!
- Don’t Invite Lawsuits by Real People Featured in Your Book! (Hint: You Can Still Be Sued Even If You Don’t Name Them!)
- Don’t Invite a Lawsuit with Your Memoir
- Boldly Assuming You “Can’t Be Sued” Will Likely Lead to a Lawsuit
- Publishing Other People’s Non-fiction Stories Can Get You Sued!
- Want to Get Sued? Write About Your Ex!
- Am I at Risk of Being Sued?
- Did Your Lawyer Say, “You Can’t Be Sued?” BEWARE!
About The Author
Angela Hoy is the publisher of WritersWeekly.com, and the co-owner of BookLocker.com (one of the original POD publishers that still gets books to market in less than a month), PubPreppers.com (print and ebook design for authors who truly want to self-publish), and Abuzz Press (the publishing co-op that charges no setup fees).
WritersWeekly.com - the free marketing ezine for writers, which features new paying markets and freelance job listings every Wednesday.
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