Ask Author Law

Is it OK to use an Amazon reader review in a blurb?

August 21, 2016

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Right of Publicity, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Libel, Fiction, Back Matter, Reviews, Amazon, Advertising

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship. Questions may be sent to authorlaw@yahoo.com.

Q: I belong to an online discussion group for independent authors who publish their own novels. Right now there is a discussion going on about whether it is a copyright violation to use an Amazon reader review in a blurb for another book by the same author inserted in the back matter at the end of the book. Some people say that quoting the reader review is fair use and others say it’s not. Someone also pointed out that it might be a violation of Federal Trade Commission rules. What’s the right answer?

A: This isn’t really a copyright issue. The most important legal question is the reviewer’s right of publicity. Copyright is secondary at best.

The right of publicity is the right of an individual to control the commercial use of his or her name, image, and reputation. It is a violation of the right of publicity to use a person’s name, image, or reputation for commercial purposes without consent. Using a person in an advertisement, product endorsement, or on commercial goods without specific permission is a clear and actionable violation of his or her right of publicity.

In the case of a book the right answer to your question relies on an important distinction in the nature of the use -- whether it is editorial or commercial. Books are editorial in nature and therefore exempt from most right of publicity concerns. Editorial use is not commercial use, even if a writer or publication earns money in the editorial process.

Beyonce provides a classic example. The first amendment protects an author’s right to write about her in such editorial works as novels, non-fiction books, news stories, and articles. Such use of a person’s name or image does not violate her right to publicity. It would be fine, for example, to have a character in a novel attend a Beyonce concert or profess an opinion about Beyonce in dialogue. However, Beyonce’s right of publicity prohibits the use her name in advertising, endorsements, or other commercial uses.

The right question to be asking in this case is whether the use of the Amazon reader review is editorial or commercial. The book itself is definitely editorial, but using the reader review in the back matter of one book to promote the author’s other books constitutes, in my opinion, an advertisement. Therefore, it’s essential to have the consent of any individuals used in promotions, ads, and blurbs. Further, that consent should be in writing. It is definitely not OK to copy a reader review off Amazon and paste it into the back matter – or to use it for promotional purposes anywhere else.

Questions of copyright arise, if at all, in cases of posting anonymous reviews or excerpts from long reviews. Such posts without consent would infringe the reviewer’s copyright unless there is a legitimate fair use defense. Fair use analysis is complex and lawyers can disagree, but I don’t think such use would be fair under most circumstances.

Using Photos of People in a Coffee Table Book

April 24, 2015

Tags: Privacy, Right of Publicity, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Editorial Use of Photos

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I was reviewing your website and was wondering if I have to be concerned with any legalities on my ORB (ORBS are spirits --deceased persons-- captured in photography) picture book prior to publishing.

The coffee table type picture book includes most of my own personal photography taken at family weddings and functions. For others who have shared their ORB pictures and spiritual captures, they have given me approval to use them.

As far as my own personal collection, do I need approvals from family members? I was thinking I would also keep the persons anonymous as I talk about the orbs in the pictures, with exception of when I include the actual picture of person who is deceased, as I do believe that was someone’s spirit captured in an orb.

A: What an interesting question! It raises three basic legal issues – copyright in the photos themselves and the rights of privacy and publicity for the subjects of the photos.

Photographs are copyrightable subject matter, and the copyright in them belongs by default to the photographer (legally the “author” or “claimant”) from the moment the photo is first captured in a tangible medium of expression (on film or digital medium). This means that you are the copyright owner of the photos you took yourself. You are, therefore, free to publish them without any worries about copyright infringement. As to the photos you obtained from others, you say that you have permission to share them. You need to confirm with those people whether they were the actual photographer because it’s the photographer -- not the subject-- who owns the copyright. Permission to use a photo in a publication is basically an implied license and is a defense against copyright infringement for all the photos where the actual photographers gave permission. If the “shared” photos were not shared by the actual photographers, however, you should track down the person who actually took the photo and obtain his or her permission to publish.

Subjects of the photos raise additional legal questions. Whether or not you need permission to include the individuals shown in the pictures depends on several factors. Editorial use of photos in newspapers, TV or online news coverage, magazines, and books is protected by the First Amendment and are generally free to publish, as long as an individual’s privacy is not being invaded. A book, (even if profitable) is considered to be editorial in nature. If you were using the photos to advertise or endorse a product, you would definitely need written consent from the living subjects, because they have a “right to publicity” for use of their name and image for commercial purposes. In your situation, your coffee table book is probably editorial rather than commercial in nature, so I would say that you don’t really need permission of the living subjects, provided none of them are celebrities and you are not invading their privacy.

A word of warning about privacy. There is no right to privacy for people in public places, but if the photos show subjects inside private homes or private yards, you should get their consent. Deceased persons – in this case the ORBS—do not have a right to privacy any longer, so you don’t need consent to include them – even in a private setting.

I’ve already said that your book is probably editorial in nature and therefore you don’t need to be concerned about the rights of publicity of the subjects. Most deceased individuals don’t have a right of publicity, but there are some exceptions for celebrities. Dead celebrities in some states (such as Tennessee and California) have a continuing right of publicity. Elvis Presley’s estate, for example, still controls the rights to commercial use of his name and image. So if any of your ORBS are famous, you should be careful not to use them to promote your book in commercial ways, such as putting their photos on ancillary materials like coffee mugs or t-shirts.