Monday, October 24, 2011

Wants to Use Thrift Store Dolls to Illustrate Stories

Dear Rich: I wish to illustrate about 25 of my own short stories, each with one ensemble of about 6 to 12 small objects such as dolls, ornaments, cut-outs of posters, etc. Many of these objects I find at thrift or junk stores, so they no longer have any packaging or any identifying marks. Other items are new and/or have identifying marks of the original source. Can I publish my photos as illustrations to my written work without seeking permission from each and every original creator of each item in every ensemble, or is there some fair use law that allows me to circumvent the (pretty much) impossible task of getting permission for every single item? There's no law we can point to that will guarantee you're okay but if you're self-publishing this book, you can probably make a strong fair use argument. That's because we assume your use is transformative -- that is, your use of the dolls or other images makes a new statement or takes on new meanings. Before making the claim, you should review fair use rules (as each use requires a separate analysis).
What if You Get Signed to a Big Deal Publisher? If you're planning to sign with a commercial publisher then things could get more complicated because most publishers will require that you clear copyrighted materials beforehand --  they're not big fair use fans. And they'll insist that you indemnify them as well. Which means that if they get sued, you'll pay for their legal costs. Ouch! So, if you're looking at a commercial publishing deal take your questions to a copyright lawyer for an expert opinion on each use. Then, you can proceed with more confidence if you need to indemnify.