Here's a website that explains copyright laws for photos and other works of art (including books). The gist of it is this: the artist owns the material. Photographers OWN the picture. Even if it is of a person. And this applies not only to stock photos used for book covers, but also author photographs.
Photographers upload their work to websites like shutterstock.com. In doing so, they usually wave most of their rights. But in some cases, they still have certain rights, and the websites where we purchase those photos most definitely do.
For example, the fine print for many stock photos includes the agreement that you won't make the picture bigger than a certain size. Most authors like to blow up their book covers for posters and other displays, knowing it's a great way to get noticed at book signings, conferences, etc., but in many cases, it is potentially against the contract of the website where the stock photo was obtained to do this. Several of the stock photos my cover designer considered using wouldn't allow the picture to be blown up to a size bigger than three feet, and in some cases, even making it bigger than one foot would get us in trouble. Basically, if we used those stock photos, we could ONLY use them for something the size of a standard book cover or smaller.
Some of you may remember the original cover for The Key of Kilenya.
It features a stock photo background. James Curwen and I decided to stop using it
because we couldn't blow it up to be larger than two feet.
The best way to ensure your legal safety is to completely read all contracts, terms and conditions, and not to assume your publisher has made the necessary arrangements. Find out where the picture came from - which website - and research that website's rules.
Another, more extreme way to protect yourself is to purchase the copyright from the photographer, get it in writing, and have it notarized. But even then, it's possible for a photographer to get their copyright reversed if they feel it's necessary. There are loopholes in every contract. When I was a paralegal, I saw people get out of contracts in many interesting and diverse ways. :-)
This is the cover we'll always use. I took the background picture myself,
so we know it's safe. :-)
Okay. You might think our discussion is finished. It isn't.
Ever wonder about the person who is featured in the picture? What rights they have, if any? If you haven't wondered, you should. :-)
Most of the time, the pictures found on stock photo websites are photographer rejects. This doesn't mean the pictures aren't good, but that the individuals didn't use them for the intended purpose. Because the photographer owns the copyright, they don't need to ask the people in the pictures permission to sale their photos to stock photo websites.
This is where Personality and Property Rights come into play. (That link will take you to Wikipedia.)
Even fonts and little decorations like the butterflies, grass, and tree leaves
in this cover can be copyrighted. When putting this together, I was very careful
to use things that were guaranteed free for commercial use.
And when I drew the girl's silhouette, I made sure it didn't look like someone else's work.
Quoting directly from Wikipedia:
"The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the Right of Publicity can survive the death of the individual."
It gets trickier.
"Personality rights are generally considered to consist of two types of rights: the right...to keep one's image and likeness from being commercially exploited without permission or contractual compensation (Right of Publicity)...and the right to...be left alone and not have one's personality represented publicly without permission (Right of Privacy)."
People can say whether their picture is used for commercial purposes or not. And even if they give that permission, they have the right to ask for compensation. Eeek. We already have enough people taking a chunk of our pie. Imagine if someone saw themselves on the cover of a book and decided they wanted to be paid every time a book was sold? While the laws differ from state to state, the individual basically has the right to do this.
James drew the metal symbol by hand,
but he used stock paint brushes to create the fire and the embers.
They were all free for commercial use, as were the fonts. James took the background picture.
Wikipedia's article continues:
"A commonly cited justification for this doctrine...is the...idea that every individual should have a right to control how, if at all, his or her "persona" is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service."
I think we as authors fall under that "help propel sales or visibility..." part.
Textures can also be copyrighted.
James drew the lock, then put a metal texture over it (the horizontal metal brushings),
along with a texture to make the lock look not-so-smooth
(you can see that texture better in the bottom half of the lock).
Also, the background is textured, not including the smoke.
What James and I have decided to do is this: for my future romance novels, we'll hire a photographer (my brother, Glenn), have him help us find models, then have the models sign a release. This way, we know the photographer personally and the people in the pictures will have signed that they won't be suing or requiring future compensation. A lot of models charge around $30 to $40 an hour for this sort of thing.
Again, I took the pictures in the background here. James used three to create the brick wall.
He drew the trident. The title and my name are stock fonts.
Another thing you're going to need to research when choosing a stock photo: whether it has been used a gazillion times already. Some of the more cheap pictures will have been sold many times.
Anyway. I'm not saying that we shouldn't use stock photos for the covers of our books. I am saying, however, that it's very smart to protect ourselves and do the research before choosing a photo.
Copyright laws are great. They protect artists everywhere. And personality rights are great too--we, as individuals, need the protections they offer. But when it comes to stock photos, it's a scary world out there, so make sure your back is covered.