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
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.”
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.
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?
- Go here.
- Read the eCO stuff if you’re conscientious, but you can probably muddle through by starting an online eCO registration.
- 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.
- Pay $35, credit cards accepted.
- Save your receipt.
- 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?