This week we’re carrying on where we left off last week, continuing to look at the challenges involved with publishing images and how to manage them. If you haven’t already, I’d recommend reading last week’s post first. This week we’re going to look particularly at managing copyright issues:
Managing Copyright
I won’t go into all of the permutations and pitfalls here, and it’s worth keeping in mind that I have no legal training. I should also stress that different publishers have different attitudes to copyright and permissions. I’m just drawing on my own experience of helping academic authors figure these problems out for their academic books.
Keep on top of it from the outset
Again, we’ll start with the obvious. Don’t plan to use any image that you don’t have a copyright solution for. Keep track of all the images you plan to use, with notes on where they all come from (including the ones you create yourself, so your publisher can tick these off quickly). Discuss what your publisher can and cannot accept, in terms of fees, limitations and so on up front.
Have redundancies
If you really need, for instance, a photograph of a particular person, object, place etc, and you don’t have a single image with straight-forward permission in place immediately, be open to having other options that could replace it. Always be ready to move to plan B if plan A is too expensive, or too time-consuming.
Be ruthless with your cuts
Ask yourself the same questions your publisher would about costs — both in time and money — of obtaining particular images, as balanced against the benefits of their inclusion. Unless your book is in an intrinsically image-intensive field (art history, say, or archaeology) one photo, figure or table more or less often won’t be really critical.
And a few solutions to be very wary of…
I’ve worked with a few authors who thought they had clever work-arounds for using images that they couldn’t get permission for (typically because they simply could not find the right person to ask). You should be very sceptical of these, some of them will work in some situations, others are almost always a bad idea.
Redrawing figures
You cannot legitimately work around the copyright in an image by making your own copy of it. When I put it like that it sounds obvious, but it’s an option that I’ve heard suggested many times. As a rule of thumb, what you can do is draw your own version of something like a line diagram, where you add further information to it, or make very significant cosmetic changes, and merely acknowledge it’s debt to the previous version. This is something to treat with care, because if handled badly it comes across as a slapdash attitude to copyright and attribution.
Changes you make need to have some substance to them, not just be for the sake of being able to say it is now your new thing. Always ask yourself how you would feel if somebody did this to your work without asking you. As a rule of thumb, the simpler the original work, the less of an issue this is. One line graph drawn from a dataset with obvious x and y axes is much the same as another (and the dataset itself is not subject to copyright), whereas a complex flowchart might contain a great deal of substantive intellectual input, and merely changing the colours of the labels and claiming it is a new thing is clearly not on.
Parodies are their own distinct subset of this, but under UK law , at least, “fair dealing” is still a legal test. In books this will tend to be relevant for photographs and images and if you’ve created an image from scratch that is a parody you’re usually quite safe. What you can’t do is reproduce a copyrighted image without permission and then add a minor detail to claim it is a parody, regardless of the parodic intent.
Using photo libraries
Back in the mid-2000s I used to spend a lot of time explaining to authors that pictures on the internet were not intrinsically in the public domain. Fortunately this is now much better understood and so less of a problem. More common now are those who will use the likes of Shutterstock and iStock to find photos for their books. This is fine in principle, it is what these libraries exist for, but we should proceed with caution. In each case we have to check the specific terms of the license granted, which may well take us back to the problems of cost and constraints that I outlined above.
One of the reasons this can cause real confusion is that many of us are accustomed to using various photo library resources for online purposes all the time. Most of my updates are illustrated with a thumbnail from Pexels, who provide royalty-free images for use on WordPress sites. The terms of use are very clear for this application and so I use them quite liberally. When it comes to books, however, terms of use are very often more constrained, as the assumption is that you are making a commercial product using the photographer’s work. You are, of course, but there is frequently a mismatch between the value the photographer or their intermediary places on their work and the value we expect it to add to our book.
We have to be very careful that any use of stock photos will be able to operate within the terms of their license. Use-cases are often quite finely delineated in these licenses and although we might class our books in many respects as “academic” and therefore “educational” they are still, form a legal perspective, “commercial”. There may also be constraints about the particular type of use — some suppliers require a higher fee to use an image on the book cover — as well as how many copies can be printed and so on.
All efforts have been made to reach the rightsholders
This is specifically a putative solution to the third kind of problem I outlined in part one. That is, where you’ve made genuine good faith efforts to identify the legitimate rightsholder and this has proven impossible.
Sometimes this just happens.
One example that sticks out to me was a book on metro structures I worked on in my EA days. The author was determined to use some diagrams that had been produced by the Baghdad Metro Authority (or something on those lines) in the late 1980s. By the time we were discussing this Saddam Hussein’s regime had been long since toppled, the entire regime replaced, and in any case the metro project had been abandoned (if I recall correctly) after the first gulf war, already over a decade beforehand. We were not, in short, going to be able to find anyone knowingly responsible for the copyright inherent in these diagrams. So after some deliberation we did indeed put a notice in the front of the book to state that we had made all reasonable effort to contact rights holders and provided an invitation to anybody we hadn’t been able to reach to get in touch.
Nobody ever did, which is what we had expected.
It should be apparent that this is really only something you should do when a) you really have tried to reach the rightsholders (or, as in this case, it is very apparent that this will not be possible), and b) there is no plausible scenario in which they do in fact get in touch and start to make demands of you. We’ll come next to why this is a concern.
Publish and be damned?
One might ask, if one were to be a bit cheeky, whether all of this really matters. Academic books often have circulations in the hundreds, so what are the odds of being caught out using an image you haven’t paid for, or couldn’t find the right person to ask for permission? And what are the consequences if this unlikely event were to come to pass?
I should begin by saying that we publishers really cannot afford to operate under this philosophy. Our business model is — not to put too fine a point on it — the acquisition and exploitation of intellectual property rights. We cannot, therefore, act as if these rights do not matter or can be ignored at will when they are inconvenient. There are times when this will seem pedantic and pernickety, but it is in our long-term self-interest to take these matters seriously, and err on the side of caution in edge cases.
With that said then, what sort of consequences might authors and publishers face, if they use copyrighted material without permission?
Embarrassment
This might not sound so bad, but it can be very embarrassing for all involved if this sort of behaviour is made public. Other publishers will look at us askance, and we could become pariahs if our behaviour in this regard is perceived to be egregious through repeat offences, or an especially cavalier attitude. For authors too it can be very damaging to reputations to be tarred with the brush of plagiarism.
Financial Remedy
When we are asking for permission to use material we have not published, and the fee requested is too high, we always have the option of not using the material, or perhaps negotiating more favourable terms by explaining our use-case and how an academic book is rather different from a big Hollywood movie. Once the material is used, we are very much on the hook for whatever fee the owner of the material might choose to charge us, under potential threat of legal action.
Well can’t we just take it out retroactively? You might ask. Well, yes, but that might be even worse…
Post-publication removal
A rightsholder could demand that we remove their material, used without express permission, from our book. Or else ask for so much money that it is our only viable option. This is both a costly and an embarrassing process. We will either have to compensate the rightsholder for all copies we have sold, or arrange to have them returned at our cost.
We will then have to withdraw the book from sale for long enough to remove the offending material. That probably doesn’t sound too bad, but consider how it compares to our usual production process. We will be taking a finished book, with page numbers fixed, a table of contents and index in place, and the text flow all tidy, and then arbitrarily removing an image from it. Quite possibly from somewhere in the middle — or heaven help us, the beginning — of the book. The knock on effect of this removal could be hours of work tidying up the flow of text and correcting the index and table of contents, as well as checking for any other unforeseen consequences. Or we could find an alternative image to use, but if that were easily done then it’s very much something we should have considered in the first place!
That’s it for this week, next week we’ll look at the third main concern — image quality — and then move on to the most important images of all, cover images.
As always, do feel free to get in touch on proposals@tbarnpress.com if you have a book project you’d like to discuss with us.
