When one of my authors sent me the photos he wanted to include in his memoir, I noticed several of them were family portraits, taken by professional portrait studios. Many of you may not be aware that when you have a portrait done, the photographer, or the studio, owns the rights, even though the images may be of you, or members of your family. This means the photos cannot be used in a book without written permission of the copyright holders. My author was unaware of this, but, fortunately, was able to obtain release forms for the photos in question.
I’m not a copyright attorney, so the following isn’t meant to be taken as legal advice. It is, however, common knowledge and accepted business practices by publishers.
Prior to 1978, a copyright was good for twenty-eight years from the date of registration. Once it expired, it could be renewed for another twenty-eight years. After that the work was considered public domain. Then, in 1978, the law changed. Now a copyright lasts for the lifetime of the copyright holder, plus another seventy years after his or her death. This includes works of visual art, such as drawings, paintings, and photographs. So if you’re including photos, graphics, drawings or other works of art, either for your book cover, or inside your book, and they weren’t created by you, then you will need to get permission from the person who created the work before you can publish it.
So what about work you’ve commissioned for your book, such as a photo or illustration for your cover? Typically, there will be verbiage in the contract between you and the artist transferring certain rights over to you. Most often these rights are for the use of their work for the intended purpose, such as your book cover. Now let’s say you wanted to use their image for something else. For example, let’s say you published a cookbook, and you hired a photographer to take a photo of one of your dishes for your book cover. Then, later on, you decide to open a restaurant, and you want to include that same photograph on your menu. Never assume that just because you paid him for the photo, you’re free to use it any way that you wish. Putting his photo on your menu, without his knowledge or consent, might land you in some legal hot water. You need to go back to the photographer and get his permission to use his photo for your menu. Chances are, he’ll allow you to use it in exchange for a royalty. But he says no, then you cannot use it. Period.
For more information about copyrights, or to discuss a specific case, please consult a copyright attorney.