Author Topic: Accepting Submissions for a Donald Trump Flash Fiction Anthology, publish 1/20  (Read 14091 times)  

Online Perry Constantine

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What about if the likeness is not based on a specific image? Like, say I hire a cover artist to do a piece of original art and say, "Make the character look like Benedict Cumberbatch" (I'm using him as an example because he has a very distinctive look), and the artist is skilled enough to do it. Would that cross the line?

I'm not an attorney so best to double-check first, but I believe if it's not based on a specific image and is just the likeness of a public figure, then that qualifies as constitutionally protected free speech. I'd advise going with a Trump caricature as it would help bolster the book's satirical nature.

Offline ThomasDiehl

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That's a really good question. I suspect most authors don't create book covers with pictures of famous actors because of photographer copyright. Stock photo sites with celeb photos usually license them only for editorial use only (so book covers are out, since books are products being offered for sale). I've been using Shutterstock for years and have never come across a celeb photo that wasn't tagged editorial use only. I suspect that may in some cases be because commercial uses might involve making it look as if the celeb endorsed a product he or she didn't endorse, and that would create legal complication for the company licensing the photo as well the person using it. Even the model-released photos can't be used in certain kinds of product ads, though I forget what the exact restrictions are.
As far as I can see, book covers of books ABOUT a certain person always have that person on the cover, almost always a photograph in the case of biographies (authorized or not).
I do believe the restrictions are about false advertising i.e. suggesting an endorsement when there is none. This does not apply when a picture is applied to a book that is about that person in one form or another AFAIK.

The original photo is extremely widespread, ranging from things like news articles all the way to some very popular meme generators. IMHO, if there was any legal trouble with this image, it would have already happened to somebody.
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Offline GeorgeDonnelly

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This is the image: http://depositphotos.com/132443932/stock-illustration-cartoon-portrait-of-donald-trump.html

It seems to be clear of editorial use restraints. Any thoughts welcome.

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Online Perry Constantine

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As far as I can see, book covers of books ABOUT a certain person always have that person on the cover, almost always a photograph in the case of biographies (authorized or not).
I do believe the restrictions are about false advertising i.e. suggesting an endorsement when there is none. This does not apply when a picture is applied to a book that is about that person in one form or another AFAIK.

The original photo is extremely widespread, ranging from things like news articles all the way to some very popular meme generators. IMHO, if there was any legal trouble with this image, it would have already happened to somebody.

Whether or not the image is widespread doesn't affect the copyright issues. A photograph of a public figure isn't in itself fair use in all cases. If it's a work of non-fiction, that could fall under editorial usage or they could have obtained the rights to use it for the book. Just because it appears on book covers doesn't mean that the same situation applies. This anthology is a work of satirical fiction, so that could differentiate it from works of non-fiction. Even if they're in the same category, you don't know what rights were secured to use that image.

Again, look at the incident with the Obama Hope poster. That picture probably appeared in a lot of different places, but that alone didn't stop the AP from bringing a suit against the artist and the fair use defense didn't apply.

This is the image: http://depositphotos.com/132443932/stock-illustration-cartoon-portrait-of-donald-trump.html

It seems to be clear of editorial use restraints. Any thoughts welcome.

The drawing is clear of editorial use restraints, but that doesn't mean the photograph it's based on is. If you really want to use this image, you should consult an attorney to make sure you're on solid legal ground.
« Last Edit: January 30, 2017, 05:29:01 AM by Perry Constantine »

Offline GeorgeDonnelly

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I appreciate everyone's comments and support. I have contacted a firm about a consultation. If anyone can recommend a reasonably-priced lawyer who is qualified in this area, I'd be grateful. me@georgedonnelly.com

If you want to submit a story, you still have a small window but email me after you've submitted to make sure I got it.

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Offline SC

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I'm curious, what's the approximate wordcount on the final finished anthology (barring any additional submissions you get before publishing)?

Offline GeorgeDonnelly

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It's short, probably under 20,000. I'll release the final count soon.

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Offline Bill Hiatt

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It's not really any of my business, since I didn't submit to this anthology, but if consulting a lawyer is necessary, wouldn't it just be better to go with another image? I know that one is eye-catching, but is it worth the hassle?

In looking over depositphotos license terms, I'm a little concerned that there is no reference to editorial images whatsoever. Yes, the site has an editorial photo section, but no explanation of any specialized restrictions that may be in effect, at least not that I can find. By contrast, Shutterstock slaps you in the face with its list of restrictions on editorial images at every turn. I find the omission a little concerning.

If you do decide to go with the existing cover, be sure to ask the attorney about possible claims arising from the underlying photo which this image clearly evokes. Normally, I would think any suit arising from that kind of problem would strike the creator of the image rather than you, but the indemnification language in the user agreement might muddy the water. Then again, maybe the weight of litigation would hit the cover designer. It would certainly be a question worth clarifying, though.

BTW, the fact that an image is widespread doesn't mean it's fair game.


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Offline GeorgeDonnelly

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There are other Trump images on depositphotos that have editorial restrictions so the concept applies there. For example: http://depositphotos.com/94236566/stock-illustration-dec-28-2015-character-portrait.html

The image I selected and the designer licensed is notably different from the Reuters photo. I'm not really that worried about it.

OMG do you know how hard it has been to get a decent cover for this anthology? No way am I starting over.

I always intended to consult a lawyer and this thread is scaring me a bit. I will, however, push the goshdarned publish button on this puppy!

Thanks.

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Offline GeorgeDonnelly

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The lawyer I contacted wants $250 for a consultation. YIKES.

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Offline Christopher Bunn

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I'm afraid $250 sounds like a good deal. I assume he's saying that for a minimum of an hour's work. I use lawyers right and left for my day job, and $250 an hour is the going rate in my type of biz for younger lawyers. I pay up to $450-550 for certain lawyers in specialties. Also, with firms that I haven't hired before, they usually ask for a retainer before they even start the clock.

Offline NeedWant

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I'm not sure if "The Best Trump Anthology Ever" is the best subtitle. If we have to tell people that, it means it isn't? I'm guessing your trying to satire it up, but saying it's a Flash Fiction Anthology might be better use of the subtitle. That way people will expect short fictional stories about Trump in the book. Right now, it's hard to know exactly what kind of fiction it is. Other than that, it looks great.

I was thinking "The Bestest Trump Anthology Ever" would sound better!  :D

Offline GeorgeDonnelly

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I'm afraid $250 sounds like a good deal. I assume he's saying that for a minimum of an hour's work. I use lawyers right and left for my day job, and $250 an hour is the going rate in my type of biz for younger lawyers. I pay up to $450-550 for certain lawyers in specialties. Also, with firms that I haven't hired before, they usually ask for a retainer before they even start the clock.

I'm sure it's a fine rate but the point remains that I can't justify spending that.

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Offline J.A. Sutherland

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The lawyer I contacted wants $250 for a consultation. YIKES.

That sounds low for anyone who's likely to know anything about IP or 1st Am law.

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Offline Jan Hurst-Nicholson

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I appreciate everyone's comments and support. I have contacted a firm about a consultation. If anyone can recommend a reasonably-priced lawyer who is qualified in this area, I'd be grateful. me@georgedonnelly.com

If you want to submit a story, you still have a small window but email me after you've submitted to make sure I got it.

Wouldn't it be cheaper just to get someone to draw a cartoon? DT is a cartoonist's/satirist's dream.

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Offline GeorgeDonnelly

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This is a cartoon and I legitimately licensed it from a legitimate stockphoto site. I think I'm going to be fine.

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Offline JalexM

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This is a cartoon and I legitimately licensed it from a legitimate stockphoto site. I think I'm going to be fine.
You'll probably be fine.

Offline elizabethbarone

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George, I think you'll be fine with the illustration. My husband and brother-in-law are artists, and they do work all the time using reference photos. There's enough difference in the illustration that there should be no issues. And since the photo that your artist used as reference was properly licensed anyway, I really wouldn't worry about it. The rule of thumb I use is to always CYA, and I think you're covered.

I do agree with others about changing the tagline to "flash fiction anthology," though, or something else that more accurately describes what the book is. I also think it's a good idea to add some kind of background. The cover looks a little flat otherwise. But since you're covering the production costs out of your own pocket, that may not be possible. Perhaps adding some texture would do the trick, or even choosing a less generic-looking font would help.

Right now there might not be many Trump-themed books available, but I have a feeling that's going to change very quickly, so if possible you'll want to stand out as much as you can.

I'm sorry you're dealing with so much right now. Hope things in your personal life ease up. Even though it would've been cool to read everyone's stories on Inauguration Day, stuff happens. Don't sweat the delays. You're doing a fantastic job!

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Offline MarilynVix

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You'll probably be fine.
I think you might be fine. It is a licensed picture that the artist interpreted a picture. The cartoon is better than an actual picture. It's been licensed for use, and I'm sure, other people might use it too. So, being the fact POTUS is so busy right now, I don't know if he'll have time to go after everything with a likeness of him on it. It's only a likeness. He's a public figure, if not, THE public figure of the US now. There will be all sorts of art about him. As long as the people that made the art licensed it for use, I think you'll be fine. Considering it's a FREE anthology, you're not even making money. So, it might be hard to sue for damages when you're not making actual money.

Offline vltreude

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Interesting, didn't know that about the Shepherd Fairey Obama poster. Though it seems to be more of a Photoshop edit than a re-interpretation.

Offline geronl

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I'd advise going with a Trump caricature as it would help bolster the book's satirical nature.

and man is he ever easy to caricature

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Offline ThomasDiehl

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BTW, the fact that an image is widespread doesn't mean it's fair game.
I wanted to let that go because it seemed so obvious, but now it comes up a second time, so let me just statet that I never claimed it did. I was talking about the absence of a previous lawsuit despite the image's ubiquity, not about any effects that ubiquity itself might have on the image's copyright.
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Offline Bill Hiatt

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I wanted to let that go because it seemed so obvious, but now it comes up a second time, so let me just state that I never claimed it did. I was talking about the absence of a previous lawsuit despite the image's ubiquity, not about any effects that ubiquity itself might have on the image's copyright.
Thomas, I was making a general point, not responding to yours. I thought I remembered someone else using its wide spread as evidence that everything would be fine. Perhaps I was wrong. In any event, sorry for the confusion.


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Offline ThomasDiehl

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Thomas, I was making a general point, not responding to yours. I thought I remembered someone else using its wide spread as evidence that everything would be fine. Perhaps I was wrong. In any event, sorry for the confusion.
It's alright, I just grew a little annoyed at the direction this thread went with all the legal concerns making things yet more complicated and unsettling.
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Offline vltreude

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George, I hate to be a pest, but what's the status of the project?