A discussion on copyright, derivative art, using covers to inspire ideas, etc.
There has been a discussion over on RomanceNovelCenter about covers being copied, what is derivative and what is not, etc. (it’s in the forums under Cover artists, but you may need to sign up to the site to view it… it’s a great site but you don’t really need to read that thread to understand this post).
Basically, an author got a cover from an artist, and for her second book in the series, decided to go with a different artist. The first artist threatened to sue the author, saying the work on the second cover was derivative. At this point I don’t know whether the second cover was derivative to not and it doesn’t matter. I think what’s important is understanding the meaning of derivative art as it applies to copyright law.
The law states:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
And I hear you saying, “whuh… huh?” Okay, here’s a LegalZoom definition which covers derivatives and who can produce them here:
Who Can Produce Derivative Works?
Only copyright owners have the exclusive right to produce derivative works based on their original, copyrighted works. Copyright on original works of authorship is automatic, and registration—while it does carry significant benefits, like the right to sue for infringement—is not required for a work to be protected; protection attaches immediately when the work is completed. However, a copyright owner can grant permission to someone else to make a derivative work based on his or her original—if permission is granted (in the form of a license or assignment), then creation of the derivative work is not infringement. But if the original isn’t yours and you don’t get permission to use the original from its creator, then you’re infringing that author’s copyright.
I’ve highlighted pertinent sections in bold/italics. So, basically, if a work is considered derivative, it is owned by the ORIGINAL creator, not the person who creates the derivative work.
Furthermore, don’t create derivative work without permission of the original owner. If you create something (or ask a cover artist to create something) based solely on someone else’s work and want it to look “just like” or very similar to that work, then you could be in violation of copyright and courting an ugly lawsuit.
Now where this gets really hairy for authors is that covers tend to come in trends and styles. The original poster above stated that the style of the books was in the “Twilight” style, and we all can pretty much agree what that is. Black background, single item in color on black background, specific typefaces in a specific place on the cover. And of course a lot of covers look somewhat similar; a lot of romances use Blue Moon typeface for instance. But authors can probably be safe by telling artists they want something to fit the genre and they like X kind of style, but asking for something slightly different. However, I wouldn’t be making a black cover with hands clasping an apple without consulting with the cover artist who did Twilight.
Here’s an example of an inspirational work that is not derivative, and I can give this one because in this case both covers happen to be mine. Several months ago I designed a cover for Todd Thorne for a short story called To Soar Free. This story involved a quilt and the Southwest, so I put something really simple up for him
We both really liked the cover, I put it in my portfolio on my website, and that was that.
A week ago Lindsay Buroker contacted me about a cover for a short story connected to her Emporer’s Edge series (which I have since been devouring). She told me where to find the short story, and mentioned that she wanted something along the lines of the Todd Thorne cover.
The first thing I did was go read the story, which featured a young boy who has a secret passion for drawing, caught out by his despotic father while drawing on the marble floor of the palace (his lovely parental unit being the Emperor). It’s specifically mentioned that he is quite talented for his age. Looking at the example set for the To Soar Free cover, I had an immediate idea. What I wanted was a single strong element highlighted in an elegant and simple way that would be compelling to the eye; like To Soar Free. That cover was definitely my inspiration, but the end product looks quite different. I was lucky enough to know someone who is an incredible artist and had some doodles available, so I got a really strong central element and married it to a marble floor effect along with a simple title treatment that very subtly tied into the existing books without replicating them in any way. Lindsay accepted my first draft as her final.
Shadows over Innocence is free and available here.
Inspiration of style and overall feel without being derivative is pretty apparent here.
If you are an author, don’t ask an artist to make a cover look exactly like another cover, unless you have permission from the original artist. If you are an artist, don’t replicate another artist’s work without their permission. Sure, use it for inspiration, but don’t copy.