Can I Use a Photograph of Scarlett Johansson on the Cover of My E-Book?

Let's say I've written a memoir that I'm planning to self-publish. And let's say I've also decided that, on my book cover, it would be great to use a dazzling photograph of Scarlett Johansson that I've licensed from a stock photo service, such as Getty Images.  Alas, Ms. Johansson has no connection whatsoever to me or my book, but, hey, her picture on the cover certainly can't hurt my sales.

Can I -- and can you -- lawfully use a picture of an individual on a book cover without his or her permission?  It depends.

There are two separate legal considerations in publishing a photograph of a person, regardless of whether he or she is a celebrity.  

First, you must consider the rights of the photographer who ordinarily owns a copyright in the photographs that he takes.  Assuming that an image is not in the public domain, you will need the photographer's permission (or the permission of the photographer's authorized agent or of a stock photo service that controls the rights, etc.) to use the photograph for any purpose anywhere in your book.  By all means, don't simply copy and re-purpose a photograph from the Internet; that would almost surely be a copyright infringement.  (Of course, if you snap a photograph yourself you are, with some exceptions, presumably the copyright owner.)

But obtaining the necessary copyright clearance may not be enough.

Second, you must consider the rights of any identifiable persons depicted in the photographs. Those rights may, in turn, depend upon the context in which the photograph is to be used. 

A person's right to control the use of her own image (as well as certain other aspects of her persona, such as name and voice) is called the right of publicity.  There is no federal right-of-publicity statute in the United States, although some advocates favor such legislation. Instead, the right of publicity is governed by state law.  The law varies considerably from state to state, but two general principles apply.  First, the use of the image of a living person in advertising or for promotional purposes, without written permission, is unlawful almost everywhere in the United States.  So, obviously, SodaStream could not have aired this politically controversial commercial without Scarlett's written permission.  Second, consent from the subject of a photograph is not needed to use the picture in connection with genuine news and informational reports. For example, The Washington Post did not need Scarlett's permission to use her photograph in connection with this article concerning her appearance on the Colbert show.  Nor would her consent be needed to include her photograph in an informational work, such as an encyclopedia or this Wikipedia article about her. That said, there are countless uses that fall somewhere on the spectrum between a indisputably permissible editorial use and an indisputably impermissible advertising use.  To complicate matters further approximately 20 states hold that the right of publicity continues for some years after an individual's death, and is enforceable by the heirs of the deceased.

So what about putting Scarlet Johansson on my book cover?  Well, context is everything.  

First an easy case:  The courts have almost uniformly held that you can use a individual's picture, without his consent, on the cover of a book that is about him, e.g., on an unauthorized biography. (See, for example, this decision involving the Black Panther leader Bobby Seale.)  But my book is about me, not about Scarlett.

Another easy case: Singer-songwriter Tasleema Yasin successfully sued a publisher for using her photograph on the front cover of a novel entitled Baby Doll without her permission.  The court held that, because Ms. Yasin had no connection to the subject matter of the novel (indeed, her name wasn't even mentioned in it), the use of her photograph was “purely for marketing and trade purposes; solely as a means to attract customers and generate sales" and was therefore unlawful.  (See also Dorsey v. Black Pearl finding that R&B singer Marc Dorsey was likely to succeed on his claim that the unauthorized use of his photograph on the cover of novel was a violation of his right of publicity.)

But things can get tricky when the person depicted on a book cover has at least some tangential relation to the subject of the book.  For example, in Christianson v. Henry Holt, a waitress sued the publisher for the use of her photograph on the cover of the well-regarded book Nickel and Dimed by Barbara Ehrenreich, which dealt with the problems faced by the working poor.  The plaintiff had previously consented to to the use of her photograph in connection with a Fortune magazine article about "single mothers supporting their families on low-wage jobs," but she was not asked for permission to use her image on the book jacket published years later.  The publisher argued that the photograph had a reasonable connection to the book and therefore the right of publicity claim should be dismissed, but the court disagreed:

At no point is Plaintiff, her photo, or the restaurant where she appears ever part of the subject matter of the book. If Plaintiff or the restaurant where she appears had been mentioned even once in Nickle and Dimed then this Court might have doubts about this ruling. But this is not the case, and as a result, the book and the photo do not bear a reasonable relationship with each other.

Another court reached the opposite conclusion in a case with somewhat similar facts.  Dallesandro v. Henry Holt & Co., involved a book cover that depicted the plaintiff longshoreman in conversation with Father John Corridan, a priest who crusaded against corruption on the docks and was an inspiration for the film On the Waterfront. Even though Mr. Dallesandro wasn't mentioned in the text of the book, the court found that his picture was illustrative of a matter of genuine public interest, and therefore there was no violation of Mr. Dallesandro's right of publicity. The fact that the plaintiff was a longshoreman and had, in fact, spoken with Father Corridan was deemed sufficient to defeat the right of publicity claim.  However, it was a close call; one of the three judges dissented, arguing that the connection between the photograph of Mr. Dallesandro and the subject matter of the book was too remote to justify using his image.

Keeping these general principles in mind, it would be risky business for me to use Scarlett Johansson's photograph on the cover of my memoir,  I don't have her consent and my only connection to her is having purchased tickets to four of her movies over the years (which I enjoyed but didn't mention in my [hypothetical] memoir).  Similarly, if you are planning to use a photograph of a person, living or dead, on your book cover, without written permission, it is prudent to ask a lawyer whether your cover might get you into hot water.

When photographs of people appear inside your book, they are less likely to give rise to legal problems because such uses are less likely to be deemed uses for advertising or promotional purposes.  But, even then, there should be some "real relationship" between the pictures and the content of your book.  (See the Finger v. Omni  Magazine case which liberally interprets the "real relationship" test under New York law.)

If you obtain a photograph from a stock photo house to use on your book cover, keep in mind that the license agreements often cover only the copyrights in the photographs.  If you're using the image on a book cover, you should insist upon seeing a copy of any applicable right of publicity release and read it carefully to make sure it allows for your intended use. And keep in mind that, while some stock photo houses provide indemnifications to their customers, those assurances may be limited to the amount of the license fee, which is woefully inadequate to compensate you in the event of a legal claim.

Finally, be careful not to state or imply that a person depicted on your book cover endorses or approves of your work, if that isn't true.  Misleading use of someone's name or likeness implicates other areas of the law, such as false advertising.  See, for example, Rostropovich v. Koch Int’l Corp., 34 U.S.P.Q.2d 1609 (S.D.N.Y. 1995), in which cellist Mstislav Rostropovich claimed that the use of his likeness on CDs featuring his early performances would cause consumers to mistakenly believe he had endorsed the CDs.

The right of publicity has many nuances. Edward Rosenthal's good lawyerly discussion of the law can be found here. A less detailed summary from the Digital Media Law Project at Harvard can be found here.  Professor Jennifer Rothman's state-by-state "roadmap" can be found here.  Some, but by no means all, other countries recognize rights of publicity, also known as "personality rights"; see a Wikipedia listing here.

The Unoriginal Sin: Differences Between Plagiarism and Copyright Infringement

Plagiarism, which many people commonly think has to do with copyright, is not in fact a legal doctrine. True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not courts. Plagiarism occurs when someone – a hurried student, a neglectful professor, an unscrupulous writer – falsely claims someone else’s words, whether copyrighted or not, as his own. Of course, if the plagiarized work is protected by copyright, the unauthorized reproduction is also a copyright infringement.

By the way, I cribbed every word of that first paragraph from Black's Law Dictionary, which, in turn, was quoting (with attribution) from copyright guru Paul Goldsteins' book Copyright's Highway.   If I hadn't bothered to mention Professor Goldstein, I would have been guilty of the sin of plagiarism, but not the actionable offense of copyright infringement.  (As a matter of copyright law, my quotation from Goldstein is, I trust, safely within the bounds of "fair use.")

In the words of Merriam-Webster Online, "plagiarism" is the act of steal[ing] and pass[ing] off (the ideas or words of another) as one's own; use [of] (another's production) without crediting the source."   By contrast, "copyright infringement," occurs "when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner."  (See the definitions section of the U.S. Copyright Office website.)  Similar, but not exactly the same.

Many acts of plagiarism are not copyright infringements.  And many acts of copyright infringement do not arise from plagiarism.  This post seeks to clarify the differences between the two transgressions -- differences that writers (and sometimes judges) often tend to blur.  Indeed, even Professor Goldstein engaged in a bit of blurring; it would have been more precise to say that "if the plagiarized work is protected by copyright and the copying is substantial, the unauthorized reproduction may sometimes also be a copyright infringement."

Copyright infringement is a legal offense against property rights, whereas plagiarism is an ethical failure to honor one's intellectual forefathers and foremothers.  Plagiarism does not amount to copyright infringement unless (a) the plagiarist has republished copyrightable expression of another, and (b) the amount of copied expression exceeds the boundaries of fair use.  For example, facts and ideas are not protected by copyright; only original "expression" is.  So, an academic who harvests facts from another scholar without giving due credit may be a  plagiarist, but, if she expresses those facts and ideas in her own words, she is not an infringer.  Or to take another example, works first published in the U.S. before 1923 are no longer in copyright.  Consequently, a novelist who lifts sentences and scenes from the short story sequence Winesburg, Ohio (first published in 1919 and now in the public domain in the U.S.) without crediting Sherwood Anderson would also be a plagiarist, but not an infringer.  When I pass off as my own original work ideas or public domain expression or sufficiently brief snippets of expression taken from others (e.g., my quote taken from Goldstein, devoid of quotation marks), I may have  -- depending upon the context -- committed plagiarism because, in the words of Judge Richard Posner, "readers of the new work are invited to think that those features are the inventions or discoveries of the plagiarist."  Yet I could not successfully sued for copyright infringement.

Conversely, if I quote too lengthily from the copyright-protected works of others, I may be a copyright infringer, even though I have carefully and fully acknowledged the author and work that I am quoting.  Thus, for example, in one well-known copyright case, the poet Ian Hamilton was found to have committed infringement by quoting too extensively from J.D. Salinger's unpublished letters in a biography of Salinger, even though Hamilton meticulously footnoted each quotation.

Examples of plagiarism are legion.  The Wikipedia offers a long, varied, and fascinating list of plagiarism controversies.  (Did you know that Helen Keller was caught up in a plagiarism scandal?)  Caslon Analystics of Australia has published another inventory of alleged incidents of literary plagiarism.  Wikipedia has a discussion of the theory and history of plagiarism here.  And Caslon Analytics's useful overview of plagiarism (again, with an Australian slant) may be found here,

I have just finished reading Judge Posner's book entitled The Little Book of Plagiarism, which provoked this post.  Judge Posner touches upon many of the famous unoriginality controversies of recent years, including those involving Doris Kearns Goodwin, Joe Biden, Stephen Ambrose, Laurence Tribe, and Kaavya Viswanathan.  (As Judge Posner points out, an uncommon number of such scandals seem to implicate Harvard personalities, not because plagiarism is especially common at Harvard, but because exposing the lapses of the academic elite gives the press and readers an extra shot of schadenfruede; see the Harvard Plagiarism Archive here for a master list of such controversies since 2002.)

Judge Posner offers an especially good explanation as to why some unacknowledged copying is plagiarism, and some is not:

A judgment of plagiarism requires that the copying, besides being deceitful in the sense of misleading the intended readers, induce reliance by them. 

* * * *

The reader has to care about being deceived about authorial identity in order for the deceit to cross the line to fraud and thus constitute plagiarism.

I am also indebted to Judge Posner for teaching me the word "cryptomnesia," which refers to "unconscious plagiarism, a sin of neglect rather than intention and, therefore, less blameworthy."  When caught in the act, almost all plagiarists, including Helen Keller, plead cryptomnesia.  But Judge Posner cites research suggesting that cryptomenesia is almost always a fallacious excuse when the copying consists of "verbal passages of more than trivial length."

The legal remedies for copyright infringement are powerful and plainly set forth in federal law.  (See Chapter 5 of the U.S. Copyright Act.)  But, as per Professor Goldstein's observation quoted above, the legal remedies, if any, for plagiarism are by no means clear-cut.

For many years, authors (and other creative people) sought to use the federal Lanham Act as a basis for litigation against those who used their work without proper authorization or credit. That legal strategy reached a dead end when the Supreme Court held in the 2003 case of Dastar v. Fox that the Lanham Act cannot be used to "creat[e] a cause of action for, in effect, plagiarism -- the use of otherwise unprotected works and inventions without attribution."  Law geeks may wish to take a look at this law review article -- and this one, too -- deploring how Dastar and its progeny effectively eliminated the Lanham Act as a remedy for failure to give credit where credit is due.  Without resort to the Lanham Act, victims of plagiarism -- who do not also have a viable copyright claim -- are left with few means of legal recourse.  In commercial settings, a buyer of a book riddled with plagiarism might theoretically seek to use consumer deception statutes to achieved redress, but there is no economic incentive to sue to recover the price of a book, and a plagiarized author may not even have standing to assert such a claim. See this earlier post discussing some less-than-satisfactory post-Dastar options, including ethical complaints to professional organizations and academic institutions.

After Dastar, shaming (either in private communications with the plagiarists' supervisors or in published accusations) remains the most effective tool for attacking plagiarism and plagiarists.  Timothy Noah of Slate offered this original idea for formalizing the shaming process in the book publishing industry; alas, it is not likely ever to be adopted.  And beware: all too often, accused plagiarists respond to shaming efforts with libel lawsuits against their accusers, as discussed in this article from The Chronicle of Higher Education.

In Europe, the legal doctrine of droit moral or moral rights gives authors the ability to claim a right of attribution in their works.  However, even in Europe, droit moral lawsuits are not routinely used to provide a remedy for garden variety plagiarism.  The United States recognizes droit moral or moral rights only with respect to certain limited categories of visual arts.  (See this brief summary of protections accorded by the Visual Artists Rights Act  in the United States.)  Writers do not have equivalent protections for the "right of attribution."

Interestingly, in June 2011, the Third Circuit Court of Appeals seems to have imported into the Digital Millennium Copyright Act ("DMCA") what is, in essence, a kind of cause of action for plagiarism in certain narrow circumstances.  The kinky case involved two New Jersey shock jocks, who hired a photographer to take a picture of them, apparently nude, with their manliness concealed by a sign bearing their station's logo, WKXW.  The photograph originally appeared in New Jersey Monthly.  Later, however, the station scanned the photograph, stripped out the photographer's credit line (without permission), posted it on the station's website, and invited fans to manipulate the image.  The photographer sued for copyright infringement and, based upon some on-air comments that the shock jocks made about him, defamation. The district court dismissed the photographer's claims, but the Third Circuit reinstated them, concluding, among other things, that the photographer's credit line was "copyright management information," and the digital manipulation and removal of the credit potentially violated the DMCA. Here is the always-entertaining Eriq Gardner's summary of the case.  And you  can see a portion of the image in question in this analysis of the case by New York lawyer Peter Fakler. You can read the entire decision here.  Of course, the DMCA does not provide a tool for addressing plagiarism outside of the context of digital manipulation, but it is an interesting new tactic in the age-old wars over plagiarism.

This New York Times article suggests that plagiarism is on the rise among college students and others, who find it tempting and easy to cut and paste into their papers the expression of others available the web.  Plagiarism.org's website cites a national survey published in Education Week that found that 54 percent of students admitted to plagiarizing from the internet.  Schools have responded by requiring the use of plagiarism-detection software, such as Turn-It-In, created by IParadigms.  

My firm recently handled case where plagiarism detection intersected with alleged copyright infringement.  Several students from McLean High School in northern Virginia tried to turn the tables on IParadigms, and sued the company for copyright infringement.  In checking for plagiarism, Turn-It-In software compares student papers not only to a huge textual database drawn from the internet, but also to an archive consisting of virtually all past papers submitted by students for scanning and review by the Turn-It-In software.  This archive is important to the review process because it enables the software to determine when students have copied from each other rather than copying from the internet.  The database of student papers is not published in any way, but merely resides on computers in the form of digital files used to carry out the comparisons.  The students contended that, in maintaining copies of their papers in these digital files, IParadigms infringed their copyrights in those papers.  In submitting their papers, the students had agreed not to assert any claims against IParadigms, but they argued that the agreement was against their will and otherwise unenforceable.  The courts disagreed and found that the archiving of the students' papers was effectively consented to and, in any event, a "fair use." Here is the opinion of the Fourth Circuit Court of Appeals affirming the lower court's decision of non-infringement.  (My firm represented IParadigms.)

One of the things I do in my legal practice is review manuscripts before they are published for potential legal problems.  The legal vetting task is fairly clear-cut when it comes to identifying issues such as libel or invasion of privacy.  However, it is often nearly impossible for a lawyer (or an editor) to spot potential copyright infringement when an author has plagiarized his sources, failing to use quotation marks or endnotes.  As a result, some publishers are now sometimes using anti-plagiarism software to detect unauthorized copying in manuscripts, particularly in high profile books by celebrity authors.  According to this article in The Chronicle of Higher Education, academic journals are similarly "turn[ing] the anti-plagiarism software that professors have been using against their students on the professors themselves."

As Judge Posner is at pains to point out, what constitutes plagiarism and what does not is not always clear.  Many universities publish useful online resources for identifying and preventing plagiarism, including this one maintained by the UCLA libraries.  And here is the American Historical Association's Statement of Standards of Professional Conduct, which includes a fine discussion of plagiarism, and the sage advice: "No matter what the context, the best professional practice for avoiding a charge of plagiarism is always to be explicit, thorough, and generous in acknowledging one's intellectual debts."

Which reminds me, I almost neglected to mention that the headline to this post is a knock-off of the title of this great article by Roy Peter Clark on plagiarism in the newsroom, which originally appeared in The Washington Journalism Review. Clark's article is filled with examples of journalistic plagiarism and offers good counsel on distinguishing between permissible re-purposing and unethical, intellectual fraud.

Actually the phrase "unoriginal sin," has been used by many other writers in connection with articles about plagiarism.  (See this Google search report.)  Likely, this is the result of independent creation -- numerous writers separately coming up with the same pun, though it wasn't at all original on my part.  Suffice it to say that not every lifted phrase or unattributed joke is a sin.  Remember, Judge Posner's point that there must be some element of deceit and the originator and/or the reader/listener must have some reason to care about the undisclosed repurposing.  This well-known anecdote illustrates the irrepressible tradition of passing off the jokes of others as one's own:

After hearing his friend James McNeill Whistler make an especially witty remark, Oscar Wilde said, "My God, James, I wish I had said that."  To which Whistler replied, "You will, Oscar, you will."