Books, Covers, and Publicity

Arthur Author bought a poster in the early 1990s. The poster consists of a painting, and was sold only in a limited edition. Arthur later wrote a book, licensed it to a "mid-major" publisher, and suggested using the painting on the poster as the cover art. The publisher thought this was a good idea, and licensed the painting for $750 from the poster company.

Oops.

It's pretty clear that the publishing industry doesn't think that adverse legal excursions in the past should matter to its own "creativity." (Certainly not when it comes to creative accounting!) However, there were several warning signs that should have tipped off anyone with a working brain cell to the potential problems with Arthur Author's cover:

• The publisher appears to have made little (or at least inadequate) attempt to confirm the identity of the actual copyright holder. It shouldn't have been too hard: The artist's name was on the poster (although removed for the book cover).
• The rights fee requested was only $750—about 25% of the going rate for original art used on a cover, and about 40% of the going rate for reused art used on a cover. When it comes to intellectual property, one should look a gift horse in the mouth.
• The poster, although in a "limited edition," appears to have been produced for the mass market.

Ironically, the "Napster gives good publicity" defense appears to have been raised:

"Mr. Friedman's representatives implied that Miracle should be grateful that a Pulitzer Prize-winning writer 'chose' his work—stating that the resulting publicity would benefit him," said von Perbandt. "Some benefit—removing his name from the image." She added that Miracle is already a well-known artist who worked in California, England, France, and the Mideast before settling in Florida.

(Caveat: I have not independently confirmed the accuracy of this account; I am relying instead, as is all too dangerous—but, in part on the basis of my experience in dealing with these sorts of things, justified—on a news article.)

Perhaps I should file this under "Department of Self-Defeating Self-Aggrandizement," whether the author was the party who was "doing a favor" or the publisher. In any event, there is a key issue in publishing contracts that makes the author "less guilty" than the publisher: The cover of a book is a marketing and publicity device that is essentially in the publisher's control. Perhaps an author as prominent as Mr Friedman has cover approval rights in his contract (although I doubt it); perhaps the publisher felt pressure to satisfy Mr Friedman so he wouldn't look so closely at other things; but legally, the cover is advertising material, and therefore the publisher's responsibility.