Don't Fall Foul Of Copyright Law.

Once again we turn to Facebook for the inspiration for our blog and one of the perennially reoccurring questions on which writers ask advice.
 
“Is it Ok for me to quote song lyrics/use images in my book?”
 
Yes, this is about the laws of copyright, and they are an essential for self-published authors to understand if they want to stay out of the law courts.
 
Unfortunately, instead of Googling the answer, these writers ask other writers, not all of whom have a good grasp of the law as it relates to copyright.
 
First of all, I must give a legal warning of my own, which is that the copyright laws vary from country to country. The major differences are in the duration of copyright after the death of the copyright owner, so it is well worth Googling the law as it relates to your own country. What I discuss here relates to the law as it is applied in the UK and EU.
 
What is consistent between countries is that there is a general agreement that each country will uphold the copyright law as it is applied in the country where the work was first copyrighted. So, if you are in the UK and you publish something that is copyright protected in the USA, then British courts will uphold the USA copyright law if the USA copyright owner asks them to.
 
Copyright law exists to protect the creators of original work (which, of course, includes you and me). The work can come in many forms, written, musical, graphic or photographic, digital or physical and the laws are constantly being updated to keep up with modern technology.
 
But first, let’s deal with a misunderstanding.

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Fair Use
 
In copyright law there is a term called “fair use” which allows extracts from copyright material to be used without permission under certain circumstances.


Unfortunately, some people interpret “fair use” to mean they can just copy stuff and get away with it. As you may guess by the fact that I have mentioned it, this is not the case.

 “Fair use” means that under certain tightly defined circumstances, someone can quote or use copyright materials without permission. Those circumstances are:

1. In the context of a review.
2. As part of teaching materials.
3. In academic papers.
 
So, if you aren’t writing a review, you aren’t teaching people and you aren’t writing an academic paper, you can’t use “fair use” as an excuse for using copyright work.
 
For example, in this blog space we also publish reviews of books and always include the book’s cover image. That would be classed as “fair use” because it is being used to illustrate a review of the book.
 
Even if you are doing one of the 3 things detailed above, the amount of copyright material you can use is limited to that which is absolutely essential to make the point.


So, you might be able to quote a single line of a song, but not a whole verse. In the event of a prosecution, the defendant (you) would have to prove that the amount of material used was the bare minimum essential to get across your point.
 
So, that’s “fair use” in a nutshell.

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If you want to use copyright material under any other circumstances you have to have the copyright owner’s permission and that usually amounts to paying for a licence to use it.
 
Licences aren't cheap, which is why people are always trying to find ways of avoiding their purchase. We just bought one from a museum's image archive to use on a cover and it cost us £162 ($202).

And there is a limit in the licence to the number of copies of the book we can sell before we have to pay more. And the maximum number is different for the ebook, the paperback and the hardback versions. 

If you think that is expensive, if it nothing like the total you would have to pay in damages  and legal fees if you were sued for breach of copyright. But hey - it's your money.

Copyright doesn’t last forever, so when it expires it is permissible to quote from works, use images etc that were previously subject to copyright. That means that when the originator of the work has died, it may be permissible to use their work.
 
BUT
 
They have got to have been dead for a certain amount of time.

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"Age does not weary them."
 
Just because a song was written or a photograph was taken a long time ago, it doesn’t mean it is out of copyright now.
 
Let’s say someone writes a song when they are 20 and they die when they are 90. That’s 70 years.

There is then a period when their estate owns the copyright for their work. In the UK and EU that is 70 years, but it may be longer or shorter in other countries. So, in that example there is a total copyright period of 140 years.
 
That means that if the song was written 139 years ago is still in copyright. To put a year on that, it is 1885. But a song written in 1884 is either out of copyright now or it will be later this year,
 
Yes, that’s right. A song written in 1885 may still be in copyright if the writer lived long enough. And the same applies to images, which is why companies such as Getty Images are still able to charge you to use every old photographs, such as those taken during World War I.
 
And just for good measure, in co-authored work it is the date of the last co-author or co-creator to die that counts. John Lennon has been dead for over 40 years, but the songs he co-wrote with Paul McCartney won’t be out of copyright until 70 years after Paul McCartney’s death and he is still very much alive (at time of writing).

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But what about using images?
 
The same basic rules apply.
 
Does that mean you could include an image of the Mona Lisa in your book?
 
No. Yes, we know Leonardo Da Vinci has been dead since 1519, which is a lot more than 70 years, but that isn’t the point in this case.
 
You wouldn’t be using the actual Mona Lisa, because that is a physical object, and you can’t put a physical object in either an ebook or a paperback. You would be using an image of the painting, and that image will be subject to copyright.
 
The copyright owner would either be the Louvre museum or the photographer who took the image, depending on the arrangement between the museum and the photographer. The only certain way to get a copyright free image of the Mona Lisa is to go to Paris and take your own photo (you can’t use a flash or “selfie sticks” – I checked).

Basically, if you didn't take the image, you probably have to pay someone if you want to use it.
 
Which is where we come to “Free to use” images. If you do a Google search using that term you will come across a lot of sites that offer free images, but they have a hidden trap.

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In most cases that “free to use” phrase means free to use for personal use, not for commercial use. To use the image commercially you have to buy a licence (the same often applies to “free to use” music).

​So, it is essential to check the licensing terms, which will be available somewhere on the site, before you download the image and use it.
 
“Personal use” usually means you can use it to hang on your wall at home, for a personal post on social media or, perhaps, to illustrate a blog.
 
It does NOT mean you can use it:
 
1. within a book,
2. as part of the cover of a book,
3. as part of an ad campaign,
4. as part of a book promotion on social media,
5. on a banner or a flyer at a book fair.

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Items 3 – 5 in that list may be puzzling you, so I had better explain.

If you are trying to sell something you are engaging in a commercial activity, so the use of the image is “commercial”, not personal, and usually requires a licence.

This has caught out a lot of authors because they didn’t realise that.
 
That list is not exhaustive, by the way. There may be other activities that are classed as commercial.
 
There is a site called “Creative Commons” where you can search for “free to use” media but do check their terms and conditions to understand how you may use it.

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Who owns copyright after death?
 
That varies from case to case.

Copyright is part of a person’s estate, so the original copyright owner usually assigns it in their Will and if they die without leaving a Will it will pass to their next of kin, just like any other asset. If the beneficiary of the Will (or the NoK) then dies, the same thing happens.

As can be imagined, it isn’t always easy to track down the legacy copyright owner after someone has died.
 
This is why authors often set up trust funds while they are alive, so that the fund manages their copyright after death. Others sell the copyright for their work to specialist companies, so they benefit from the work while they are still alive and able to enjoy the wealth.
 
Photographers often sell the right to make money from their work to companies such as Getty Images (but the photographer still owns the copyright). An iconic photograph that appears on the front pages of newspapers around the world may be worth a lot of money to the photographer as those sorts of images are often reproduced to illustrate media articles.
 
FYI – Getty Images and similar companies always charge a lot of money if you use one of their images without a licence (a lot more than the cost of an actual licence), because the alternative is a lawsuit, which you would lose, and which would be even more expensive. So, if you don’t want to pay for a licence, don’t take the risk of using the image!

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Public Domain
 
Once the copyright on a piece of work has expired, it becomes “public domain”. That means anyone can publish it and make money from it.
 
For example, if you want to take the complete works of Shakespeare and publish them, you can. However, you can’t claim them as your own work. That is plagiarism. They are still Shakespear’s work, and his name would still have to appear on the cover.
 
Even though Shakespeare has been dead for over 400 years, so he can’t sue you for plagiarism, you would lose all credibility as an author if you were to claim his work as your own. You would certainly never get a publishing contract with any reputable publisher.
 
If you quote or use public domain work, it is normal to credit it to its original creator, even in works of fiction.

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What about AI?
 
When it comes to AI generated work, whether text or images, it may be subject to copyright (or it may not). It is such new technology (in relative terms) it hasn’t yet been tested in court, but there are lawsuits in progress.
 
Only humans can own a copyright. So, images created by AI can’t be made copyright by the owner of an AI software company.
 
However, the images used to train the AI may be subject to copyright and that is where the real trap lies. Getty Images did open a lawsuit which alleged breach of copyright for using images that were subject to licencing agreements, to train an AI generator. By inference, they claimed that their licences were being circumvented by the use of AI to make subtle alterations.
 
At the very least the Terms and Conditions of the AI generating platform need to be adhered to in order to avoid legal complications, because agreeing to those Ts & Cs constitutes a legally binding contract. In many cases the Ts & Cs limit the use of AI generated material to “personal”, which we have already covered under “free to use” images.
 
It must be assumed that the use of AI writing software to produce books may also fall foul of the platform’s Ts & Cs if the user then publishes the finished work. However, there are also law suits in progress where authors are suing a well known AI platform for using their work, without permission, to train their AI platform, which is similar to the Getty Images case.
 
The ramifications of such a legal case will have an effect on the users of AI to produce books because they may be infringing the copyright of other authors.
 
We shall have to wait and see. Quite literally, the jury is still out on this.

Just as an FYI, a book produced using AI is not copyrightable, because the author isn't human. So have some fun at the expense of cheating "authors" who use AI to produce books and re-publish them, just like the complete works of Shakespeare.

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So, what we would like you to take away from this blog is:
 
1. “Fair use” may not mean what you think it means.
2. Don’t use copyright material without the copyright owner’s permission.
3. Just because someone is dead, it doesn’t mean you can use their work without permission.
4. If using “free to use” images, check the Ts & Cs because you probably need a licence to use the images commercially.
 
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