Home » Big Publishing, Legal Stuff » Not a Good Week for Harper Collins – Cover Art Rip-Off

Not a Good Week for Harper Collins – Cover Art Rip-Off

19 August 2011

Do you see any similarity between the following two book covers?

Here’s the story:

Author LK Rigel’s self published book, Spiderwork, has a gorgeous cover. So gorgeous that HarperCollins contacted the artist to purchase it from her. The artist refused. No matter, thinks HarperCollins.

. . . .

In an email, Nathalie Suellen, the artist, shared she was originally contacted by writer LK Rigel about the license for Suellen’s original artwork ‘City of Angels’ which was created in 2009.  The license was sold to Rigel and Rigel used it on her book  ”Spiderwork.”  HarperCollins contacted the artist in May 2011.  The company offered her 4,000 dollars (a very normal value offered for cover art) but knew that the art had been sold to another author.

The artist refused because the cover art had already been used on a book and she didn’t think it was right for the same cover art to grace more than one book.   Suellen offered to create another image, including one with the same model but eventually the parties could not come to an agreement.  Suellen had no further contact with HC and thought the matter had been dropped.  Then the “Bewitching” cover appeared.  Suellen contacted HC and received no response.

Link to the rest at Dear Author

But the story doesn’t end there. Between the time several people pointed PG toward this story and the time he wrote about it, developments continued. The following appeared on Alex Flinn’s Live Journal page:

Aug. 18th, 2011 06:22 pm Bewitching Cover Art to be changed

Thanks to some alert readers who alerted me to the similarity between the proposed cover for Bewitching and an e-book called Spiderwork by L.K. Rigel.  As I indicated in my original post, the Bewitching cover is a work-in-progress.  In light of the perceived similarities, my publisher has assured me they are creating a brand new cover for Bewitching.

Similarities do happen.  Recently, two children’s novels were published with virtually identical covers.  Two friends of mine had novels in the same season with stock photos which were, if not identical, at least of the same model in the same photo shoot.  Of course, everyone prefers to avoid these similarities if at all possible.

Again, I would like to thank those alert readers and, indeed, Ms. Rigel herself for her classiness.  I’m sure there will be an awesome cover for Bewitching, and you will see it soon.

Link to the rest at Alex Writes

Here’s a link to the artist Nathalia Suellen’s website and a link to an 8-page Kindleboards discussion of the rip-off.

Isn’t it amazing what a sophisticated publisher like Harper Collins can do to boost an author’s profile overnight? What was the word HarperCollins CEO Victoria Barnsley used? Reach. That’s it. HarperCollins spends a lot of money increasing its authors’ reach. That’s why they can’t pay more than 25% ebook royalties.

HarperCollins has 8 pages of increased Reach for Alex Flinn on Kindleboards. What kind of Reach? How long will it be until people stop connecting “Alex Flinn” with “cover ripoff”?

Alex bravely writes, “Similarities do happen,” but PG thinks this whole episode has left a mark on her even though she’s apparently completely innocent. She’s victim #2.

A couple of word about the legalities of this: Slam-dunk winning lawsuit for Nathalia Sullen if HC hadn’t backed off and probably even if they did.

But don’t quit reading here, a plot twist is coming.

(For international visitors, what follows is all U.S. law.)

An ordinary copyright analysis would look at the overall appearance of the two covers followed by details of similarities and differences. PG thinks Nathalia would win on that, but this isn’t ordinary.

HarperCollins wanted to buy the art, but Nathalia wouldn’t sell. Drop that little fact into the comparison of the two covers and you’re into slam-dunk territory.

Title 17, Section 504 of the United States Code describes damages for copyright infringement. Where infringement exists, the copyright owner can get actual damages or statutory damages.

In this case, Nathalia may not have any actual damages – real dollars lost because of HC’s piracy – so the court could order statutory damages in an amount between $750 and $30,000, at the court’s discretion. Even if Nathalia had zero actual damages, statutory damages would almost certainly happen.

But Wait! There’s More!

If the court finds infringement was committed willfully, then damages can be increased to a sum of up to $150,000.

Since the Reach geniuses at HarperCollins contacted Nathalia and try to buy the work before copying it, this looks pretty willful.

Plus, PG would bet anybody a cheesesteak at Geno’s in South Philly that when Nathalia’s counsel takes the deposition of the artist who created the Alex Flinn version of the cover, we would discover that, as part of the strategy for increasing their author’s Reach, somebody at HC showed the artist a copy of Nathalia’s original and said, “Copy this, but not too much.”

Cha-Ching.

If HC can show it was “not aware and had no reason to believe” it was infringing Nathalia’s copyright, statutory damages may be reduced to $200. Not a likely winner since they tried to buy it.

But the hits just keep on coming!

In addition to statutory damages, the court may award attorneys fees (and often does) to the winning party in copyright infringement litigation.

Statutory damages of up to $150,000 plus attorneys fees are looking pretty good. This is what PG would call increasing Nathalia’s Reach. Right into HarperCollins’ bank account. The big one.

But

Here’s the real moral to this story for all of PG’s valued readers: You don’t get statutory damages or attorneys fees unless you have registered your work with the U.S. Copyright office.

When do you have to register to get statutory damages and attorneys fees?

1. Before the infringement or

2. Within three months of publication

PG has no idea if or when Nathalia may have filed for copyright registration for her artwork. If she registered it before the HC artist got her cover done or mostly done, she’s entitled to all the goodies.

If Nathalia “published” the artwork less than three months ago, she should file for copyright pronto and the goodies can be hers. What is “publication”? That can get complicated, but it probably happened when she posted it on the deviantART website. Since the Dear Author post indicates she created the work in 2009, she’s probably out of luck on the three months after publication option.

So, dear readers, register your work with the U.S. Copyright Office. It is dead simple. You don’t need an attorney. PG probably can’t do a better job of it than you can.

How do you register?

  1. Go here.
  2. Read the eCO stuff if you’re conscientious, but you can probably muddle through by starting an online eCO registration.
  3. Fill out the forms – The website design is pretty clunky, but trial and error will get you there (you can save your work for future use) and upload a file of your book.
  4. Pay $35, credit cards accepted.
  5. Save your receipt.
  6. Wait about 3 months for notice your copyright is official.

Do it right away. HarperCollins is constantly looking for ways to increase its authors’ Reach. Who knows where they may reach next?

Big Publishing, Legal Stuff

68 Comments to “Not a Good Week for Harper Collins – Cover Art Rip-Off”

  1. Thank you very much for covering this!

    It is indeed an important lesson about copyright. Even though I’m in the UK where we don’t have any official bodies for copyright registration, I plan to register for US copyright since my work will first be published there via Amazon & thus counts. I figure this will help me if I have any issues in the US and also serve as proof of copyright elsewhere if required.

    Certainly, being able to quote that you are the registered copyright holder for a work sounds like it helps for digital take-down notices too.

  2. This is just so typical!

  3. Sorry, let me explain: “Our right hand didn’t know what our left hand was doing.” and/or “You can’t copyright ideas…”

  4. I don’t know why I enjoyed this post so much. I think PG’s snark just adds something. Also: schadenfreude.

  5. This is a new high in low behavior. Of course, if indie and self publishing are fads, like so many big publishers say, why are they monitoring and trying to buy artwork from self-published books? Sounds to me like they’re desperate and running scared a lot more than they are admitting in public.

    • Keith – Desperation combined with incompetence is a potent brew.

      • If I recall the sequence of events correctly, they first contacted the artist and tried to buy the art. The artist told them she’d already licensed it to an author. They asked a bunch of questions about that author, then went ahead and copied the art.

        So it doesn’t seem like they were trolling indie books. It seems like they were looking at DeviantArt, just like the indie author did, and maybe thought they could get away with it because it was just an indie author and indie artist.

  6. Thanks for sharing your legal knowledge with Indie authors. Posts like this are one of the reasons you’re head and shoulders above other bloggers on this subject. You rock!

    (Now I’m off to take my latest Indie cover to the ECO.)

  7. PG, I hope you’ll post this into in the thread over at DA; there is a lot of confusion over what happened and what the copyright holder’s options are now. I for one think it would be great to see NS pursue this and win.

  8. Question: if the rights to the artwork are sold to the author on whose book it appears, who’s responsible for registering the copyright? If the author copyrights the entire book (let’s say ebook – I understand this involves sending a copy of the ebook, which would include the cover, to the copyright office), does the cover art come under that copyright?

    • Elisabeth – The author/creator owns the copyright unless/until she transfers the copyright to another. I’m not familiar with the transaction underlying the first book cover, but usually a creator would license the work and retain the copyright.

      The owner of the copyright or an authorized representative of the owner is entitled to register the copyright.

      If a book’s author is copyrighting the book, the easiest way is to forward the manuscript file plus back cover copy.

      The entire book, including cover, could be sent, but the registration application would have to call out the cover art as being copyrighted material owned by another.

  9. I think you make a good analysis for how this was intentional, not inadvertent, plagiarism of an image. If there had not been contact between HC and the artist that might be harder to prove, because of how self-referential many genres and subgenres are. I have seen a romance covers column that regularly points out covers that look like one another – identical except for minor shifts in post or the color of clothing – so to some extent the recycling of images and inspirations may just be part of the publishing cover art depts. But to have one original image requested and refused, and then for a new original image to suddenly have a listing of all the same features? Yikes. But, hey, thanks HC for extending the reach of both the artist and the self-pubber in a positive way!

    • Lily – You’re correct that the direct contact between HC and the artist separate this from other similar covers cases.

      • It’s also different because this was original art, not a clever manipulation of a stock photo. Stock photos get reused all the time. Stealing an original piece is different.

  10. There is actually even more to this story. A thread here on goodreads where the artist posts her views on it: http://www.goodreads.com/topic/show/635230-rip-off-cover

    Yes, I know how you feel about that site, but the artist reveals that they questioned her as to the genre of the author she sold the art to, as well as where the author lived. It’s obvious they were trying to find out what the copyright laws were and how they could subvert them. Sasha Illingworth, the woman who contacted the artist, is just NOT a good person and hopefully she and HC will get all the bad publicity that’s coming to them.

    • Thanks for the additional detail and the tip, Kate.

      To be clear, I have no problem with the content on GoodReads, just the way the website is designed and how hard it is to do some things that should be simple.

  11. happy cheetah!

    BTW, for anyone wrestling with copyright, try this book – The Copyright Handbook, by Stephen Fishman JD.

    So simple, so clear, so awesome. I originally found it through Kristine Kathryn Rusch’s blog, I believe, let me check my browser history… yeah! She also sells it through her amazon bookstore – http://astore.amazon.com/kristinekathr-20/detail/1413308937

    And that, my friends, is what I did on my summer vacation. Read up on copyright law, scared myself silly, etc.

  12. HC doesn’t like the heat. I tweeted about this at 11:12 AM CDT. Got a reply back from HC 11 minutes later.

    “The cvr has been work in progress. Due to perceived similarities to existing ebk, we’ll be altering our cvr ow.ly/67ENz”

    Personally, I loved the “perceived similarities” part.

  13. As you point out, it’s the wilfull intent, displayed on HC’s part by knowing about the cover and making a likeness, that would have made this a case of clear-cut infringement IMO. If Suellen had pursued this, the burden of proving access to original work would’ve been met by the contacts with HC, and substantial similarity, by the final result. There would be no magical percentage of elements used to protect HC here, such as the different models, bird in a different placement or different background. Glad to see it was settled in the best way possible, by having HC go back to the drawing board.

    • Lisa – I agree that HC beating a retreat was the best resolution of the matter. Seldom are copyright infringement cases so easy to prove as this one would have been.

  14. Wow, thanks for your excellent coverage of this story and your analysis. I was familiar with it, but had no idea the artist was actually contacted to sell the original artwork!

    Really, really blatant and stupid. Did they not think anyone would notice?

    I’m with you. Both authors were victims here. I really hope Miss Flinn doesn’t see backlash from this on her book. What a shame.

    Also, thanks for the copyright links. I have a completed book I’m posting for free on my blog as a serial, but I think I’ll make sure to get that taken care of before the story is fully posted.

  15. Having worked as a “work for hire” freelance artist for years I’ve seen a lot of shennanigans related to stuff like this. Some of it’s innocent, some of it’s not. A lot of it comes down to the fact that most artists don’t know more than the average joe about copyright and what their responsibilities are. One artist I dealt with traced a cartoon animal off a movie poster and tried to pass it off as new art for a job I was on. He later said that it was something he’d done for a different client but they hadn’t used it so he’d tried to recycle it here. He literally had no clue just how wrong it was and no concept of the kind of lawsuits if would have opened my client up to.

    I could easily see the situation being where the artist was told “use this for inspiration” and turns out an infringing cover because he didn’t know any better. I suspect the “copy this” comment is more on the mark though. Lots of clients who don’t understand (or care) about copyright will do things like that. If the artist doesn’t know enough about copyright to raise flags (or is too scared about keeping their job) you get this mess.

    Question though: since the cover hadn’t actually been put into production and profit was not made off it, does she still have a case?

    • Jean – You’re right on the mark as far as most people not understanding fundamental elements of copyright law.

  16. My favorite part of reading a Passive Voice blog is how it is a story of its own: Authors mistreated! Crime! Action! Twists and turns! Is resolution found? And ultimately… the lawyers. :)

    • Amy – Who would think publishers and agents would provide so much suspense? Barely a day goes by without someone blowing off a toe.

  17. Passive Guy,
    Thank you for another enlightening story. I’m copyrighted and would love some statutory damages.

  18. Firstly, I am in no way shape or form a lawyer, just an armchair observer with a good memory. Just a few things that occurred to me, but wouldn’t the necessary registration of the copyright essentially take all the teeth out of the Berne Convention? If an artist can’t get damages from an infringement determined by the automatic generation of copyright as given in that convention, that would kinda suck. I also believed that with this kind of infringement, it could be possible to have an injunction issued against Harper Collins as they are reproducing infringing artwork without a license to do so (I could swear I remember cases of this with software copyright claims). I would have thought a Judge looking at the two covers would have a hard time declining, if it is legally appropriate to do so. I also wondered if Harper Collins knowingly using it, and also knowing that they were doing so despite the art having already been sold to another published would constitute tortuous interference with that contract. I also wondered if the other publisher, author and the artist would not have grounds for damages based on lost sales due to the cover artwork having been ripped off, and their book arriving in stores later, punters would assume they ripped it off which result in lost sales. I could see a counter argument being that all the publicity around the case would in fact generate increased sales rather than less though. No idea how the law would see that one.

    As an amateur photographer and software developer, this is an issue close to my heart, and if I need to register things with the US copyright office, I better get to it quick smart!

    • Alex – Under the Berne Convention, the author need not register a copyright to get actual damages. However, to obtain statutory damages under US law, registration is necessary.

      While copyright protection is automatic without registration, the law is designed to encourage registration by expanding the options for enforcement for those who register.

  19. Wow. Thank you for addressing this topic. Two things. First, your coverage of this seemingly desperate act on the part of HC (if infringement can be legally proven) made me realize that copyright registration is truly a necessity. I see a check-in conversation with my cover designer in my immediate future. Second, your running commentary on the blog abut cheesesteaks is making me hungry!

    • Roxy – I’m happy this is helpful.

      You can always fly to Philly to feed your cheesesteak habit.

  20. Imitation is the sincerest form of flattery, some say.

    Each individual element in the two pictures is different from its “twin.” Are we going to outlaw all future artwork that features a woman’s bare back, a raven, clouds, and old buildings?

    I don’t see any copyright infringement.

    -Steve

    • Steve – In most infringement cases, there is always back and forth from each side – similar/not similar. Courts sometimes talk about the totality of the impression which often comes down to “I know it when I see it.”

      It’s a hard slog to win a typical copyright case where the copying is not exact. It’s the backstory of this one that makes it so interesting.

    • I’m not 100% sure, but I think in a case like this, the produced artwork would be considered a derivative work. A work that used the original as a starting point, and modified a few bits. There’s a fine line between a derivative work and an inspirational work I’d guess, but because of the back and forth here between HC and the original artist, I think they’d have a hard time claiming it wasn’t a derivative work. As I understand it, if two artists independently draw a scene with a bare backed women, a raven and a city-scape, they wouldn’t be derivative works as one is not based on the other. It’s kinda like the Vanilla Ice guess I’d imagine. He didn’t copy the whole song in entirety, but just a small part of it that wasn’t 100% identical, and he was successfully sued.

      • Alex – There is a copyright concept called independent creation. If, without seeing artist 1′s work, artist 2 independently creates a copy, then artist 2 is not an infringer.

        You can imagine making this defense/denial work is not always easy.

  21. Given that the going rate for personally contracted book covers is $200 or less, with no ongoing royalties, $35 would be a significant chunk of that. I know a number of cover designers who charge only $50 to $75 per cover. Add in the fact that many copyright violations happen outside an artist’s country of residence, and the situation gets even more bleak.

    In many cases registration is simply impractical. The best some of us can hope for is simply getting the violator to cease distributing the infringing work.

    • One way of potentially saving money is to include several different works in a single copyright filing. The owner and author of each of the works needs to be the same. The same authorship means the same people must have contributed the same type of work for each of the works being copyrighted. For an author, multiple books can be included in a single copyright filing so long as each of them was written solely by you. For a cover artist, if everything in the cover is original work, then multiple covers can be included in a single $35 registration.

      However, if the covers use stock photos from different photographers, the authorship for each cover wouldn’t be identical because the creator of the stock photo would have a copyright on that component of the cover. Such cover designs could be copyrighted, but the registration information would call out each stock photo as a work for for which the copyright is owned by others.

      • Thank you, that’s very helpful information.

      • PG, your explanation of stock photos being components and how that plays out was also echoed by the artist who does my covers when I subsequently inquired about her take on all of this. Whether a work composed of stock photos, each having their own copyright is worth registering again, as a separate entity, is questionable based on the cost and risk. Another factor is that the author owns the image but not the copyright in the case of stock photo composite. However, this case deals with the registration of the original artwork, and I’m sure that both author and artist are quite thankful for the original work’s registration.

        • Roxy – What the author owns depends upon what the stock photo photographer gives the author (or the stock photo agency that handles sales). Usually, it’s a non-exclusive license to use the photo in lots of different places, but it is license-dependent. Usually, the photographer continues to own the copyright, subject to the license(s) granted. If the cover artist licensed the stock photo, the cover artist owns the rights under the license.

          If the cover is a “work made for hire” for you, then you own the cover copyright. If you want that, it’s a good idea to use the specific term, “work made for hire” in the contract between yourself and the cover author.

          Absent a work made for hire, your cover artist owns a separate copyright on the cover he/she designs for you, unless he/she expressly transfers that copyright to you. Stock photos incorporated in the cover are part of the cover designer’s copyrighted work, but the cover designer doesn’t have a copyright on those photos separate from his/her cover. The cover artist can transfer the cover copyright to you or give you a license under his/her copyright to use the cover for your book.

          As far as whether the cover copyright is worth registering for $35 or not is a judgment call. If it isn’t registered and someone copies the cover, although that would be an infringement of the cover copyright, you may not be able to recover damages sufficient to justify litigation costs.

  22. PG, I’m confused because this doesn’t match up with my (completely non-lawyerly) understanding of copyright. I had thought that everything was copyrighted as soon as you write it, as long as you can prove it? Is it just that you can’t get statutory damages and attorney fees without registering, but you can get other kinds of damages? What exactly does registering with the copyright office get you?

    • And also, how much of an art work can be copyrighted? Since they didn’t copy the original image, they modeled a new one after it. Is that still considered the “same form”?

      • This is not a simple question nor an exact science. I’ve decided to do a couple of additional copyright posts to provide a little more information.

    • Livia – You are correct in your understanding. Copyright happens automatically, but statutory damages don’t unless you register.

      Proving actual damages can be very difficult and expensive and they may not be very large. If a book cover is being sold for $500, is there a case for actual damages being higher?

      The presence of statutory damages plus attorneys fees also spurs a lot of settlements. If the defendant settles, he/she can usually get “I don’t admit to any liability, but we’re settling to avoid the expense of litigation” confidential settlement documents. If the case goes to trial, somebody will publicly lose.

      In addition to statutory damages and attorneys fees, the registration gives you a definite date when the work was in existence, which takes one element of proof in the case off the table.

  23. [...] got to read my source material for this post. There’s more to this story! Please “click here” to check it out for yourself! Stumble! for WP Sphere: Related Content This entry was [...]

  24. [...] Collins produces a cover that looks very reminiscent of some art they tried to buy. Discussion here on the legalities. And some interesting points on copyrighting work.   « Sleepy [...]

  25. [...] Guy on The Passive Voice Not a Good Week for Harper Collins – Cover Art Rip-Off “Here’s the real moral to this story for all of PG’s valued readers: You don’t get [...]

  26. I think this is a close call. The woman is different. Hairstyle is different. Hair color is different. Garment is different. Posture somewhat similar. Background: different buildings. Troubled sky partly similar. Raven— standard symbol, image in many works in the genre. While HC cannot use straight copying, they can certainly provide other works as inspiration…

    It’s very important to register copyright before any publication (simplest) or within 3 months after your publication, to preserve the chance to seek statutory damages and reimbursement of attorney’s fees. Otherwise, as a practical matter, you’re usually SOL— the costs of suing will dwarf any recovery.

    • Davidka – Agreed that, without the contacts with HC, this is a close call. The general rule is “substantially similar” and some analyses focus on a component-by-component comparison while others discuss an overall impression made by the accused work. One element to consider is whether a consumer would be likely to confuse one book for another, although that begins to edge in to trademark law.

  27. So Passive Guy, did you contact Nathalia so that she could read this very informative post? I hope she finds an IP attorney willing to take on the case for a percentage, and gets her damages. :)

  28. Sariah Wilson: The creator of the first cover is only likely to interest an IP attorney in her case if the artwork was timely registered— before publication or within 3 months of the (legitimate, not infringing)publication. If not timely registered, the statutory damages and attorney’s fees are not available, and it is unlikely the infringed party can find an attorney to take the case on contingency. And if the plaintiff pays an attorney by the hour, the amount of damages recovered, assuming plaintiff prevails, is likely to be dwarfed by the cost of pursuing a suit.

    That’s why I (I am an IP attorney) beg clients to register all their work before they publish it. Although the copyright office is terribly backlogged, work is considered registered when received by the copyright office, even if they don’t process the application for 8 months…

  29. I suspect that the characterization of the artist’s case as a “slam dunk” is at best artistic license. I wouldn’t take the case on contingency. If she does sue, I’d be very surprised if she won. “Your honor, we developed the draft cover while we were in discussions with the artist. When she refused to agree to a license, we changed it to a non-infringing image.”

    HarperCollins has other issues. Here’s a blog post:
    http://y42k.wordpress.com/2011/03/21/harpercollins-tells-us-what-ebooks-are-really-worth/

    • Good point, Ray. There was no commercial publication of the similar cover, apparently only an online preview. My comment was premised on an assumption of what would have happened had the book been published with the offending cover.

      • At this point, things have actually worked out pretty well for the artist. Look at all the good pub she’s getting! I know I never would have heard of her otherwise.

        Not that HarperCollins isn’t still evil…

        • I agree, Ray. The indie author has also received lots of publicity.

          Maybe someone needs to set up a book publicity agency that pays publishers to put up phony rip-off covers, then pull them down, leaving them up for just enough time for the PR people to post the problems on Kindleboards.

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