I was recently considering a manuscript for publication when I noticed the author had scanned two popular cartoon strips, as well as entire pages from a magazine, and pasted them all of those into his book.
I wrote to him, asking if he’d obtained written permission from the copyright holders of the cartoons and the magazine. He responded that he was “covered” because the magazine had been out of print for years, had limited U.S. production, and no offices in the U.S. He said the government of another country had shut the magazine down. He didn’t mention the cartoons at all in his reply.
This was my response:
1. The original journalist may still own the rights to that article. And, just because a company is out of business
doesn’t mean their intellectual property can be used without permission. If you pulled all of your books off
the market tomorrow, and went “out of business,” you would still own the rights to your books. People couldn’t
start republishing your books, nor parts thereof, without your permission. The same holds true for other businesses.
The publisher, [name removed], is the copyright owner of the magazine. It has/had offices in four countries. I’m
sure they’d love to line their pockets with money from a copyright infringement lawsuit.
The publication is copyrighted. You have a scan of the masthead page itself appearing in your manuscript. I recommend trying to find the old publisher or editor. See if the publisher is still operating in another country, and contact them. They had offices in the US, the UK, Russia, and South Africa. All of their contact info. is in the masthead page in your book.
If you can’t obtain written permission from the copyright holder, you can’t use it. If you can’t find the copyright holder, you still can’t use it. It’s not in the public domain.
2. What about the cartoons? [Name of cartoonist removed] is distributed by Universal Press Syndicate. He is still very much alive. Even if he was not, his heir(s) would own the copyrights to his work. And, he and Universal Press
Syndicate would not hesitate to sue for copyright infringement. His email address is at the bottom of every cartoon.
[The other cartoon] you used is also copyrighted.
Finally, did you create Table 1 and Appendix 1 appearing in your book or were they obtained from other sources? I have to ask because of the other intellectual property issues in your book.
Unfortunately, it’s a common misconception that the intellectual property of defunct publications is up for grabs. Nothing can be farther from the truth. It’s also a misconception that cartoons can be republished simply because they are graphics. That is also entirely untrue.
Authors should research copyright laws thoroughly before including anything in their book that they didn’t write or create themselves.
- Busted! I Caught a Writer Trying to Sell a Stolen Article!!
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- WritersWeekly Invoices Competitor Anne Wayman $38,250 for Copyright Infringement
- In the U.K., copyright infringement can lead to a lengthy prison sentence
- Can Your Publisher Get YOU Sued For Copyright Infringement? Yep!!
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Great article and comments. In my writing (as well as other facets of my life) I go by the theory: when in doubt, don’t.
Wow! “When in doubt, don’t,” is what I use for everything I doubt in my life, too! (Especially that second helping of dessert!!) 😉 Seriously, though…I taught it to our kids, too. It really works. 🙂
A question about common household items. Is it acceptable to mention “Coke” or “kleenex” (Pass me a Kleenex so I can wipe up the spilled Coke – for instance)
There’s an excellent article by a lawyer about this topic here: http://www.betternovelproject.com/blog/trademarks/
The good news is that the people in the US copyright office can be very helpful. I had forgotten to list the cover photo (which I took) on my application and the man assigned to my application made sure the application reflected the photo’s status, as well as the status of a poem I quoted (I had acknowledged its author). They might not be a substitute for a lawyer for complicated issues but the copyright office professionals are a good place to start.
Michael Perry’s comment is very useful. I’ll only add a slightly different take. When I wanted to include in one of my stories a reference to a political cartoon–I wouldn’t be using the actual image, only describing it and quoting the caption–I contacted an Intellectual Property attorney. He said that because I wasn’t using the image itself, only describing it, I “should” be okay legally. The thing is, a writer can still be sued for copyright infringement if the artist wants to sue. The author referencing that other person’s work may end up winning the case, but there could still be that case, a case which would require time, commitment, and resources to fight. So unless a writer really needs the “real thing,” it’s best to just make up something on your own, like creating your own lyrics to a fictitious song that doesn’t really exist. As writers, we only need to create the illusion that we’re quoting a real song or referencing a real political cartoon. We don’t always need actual material that someone else created. Maybe I’m “chicken,” but in my own stories, I’ve decided to just play it safe and avoid the issue altogether.
Quote: It’s also a misconception that cartoons can be republished simply because they are graphics. That is also entirely untrue.
How true! Copyright law becomes MORE messy when graphics are involved not less. With words, fair use allows you to quote enough of them to use for its list of permitted reasons. If you’re arguing that someone is wrong on a particular topic (scholarship), you can quote the points they’re making as part of your disagreement with them. If you are a book reviewer and think a writer has no talent, you can quote examples of what you consider bad writing (criticism). Just don’t abuse that by quoting more than necessary to make your point. And in most cases, it’s courteous to credit your source.
Pictures, graphics, and political cartoons are different. In almost all uses, the entirety of the image is included. That may seem small in comparison to a 10-page article from which you are taking several paragraphs. But copyright law looks at the proportion you’re taking not its literal size. If you reproduce a cartoonist’s political cartoon, you are taking the entirety of his work. It’s difficult to argue that’s fair use. Also, who owns the rights can also be messy with images. While an author and publisher almost always owns the content of a book in its entirety, the creator of the image may have licensed its use specifically in that book and retained the rights for any other use.
If you’d like to know more, Nolo offers some excellent guidebooks on copyright law. Many libraries stock them. Copyright law has been fairly stable in recent years, but in touchy situations, you might want to consult a lawyer who specializes in it. That’s particularly true if you do business in the Second District (New York). The presence of so many well-heeled copyright interests in Manhattan tends send its federal courts careening off the rails every couple of decades. You don’t want to be in one of those train wrecks.
In the case of political cartoons, there are websites that can license their use. Just do a search for “stock photo political cartoon.”
–Michael W. Perry, medical writer