A Copyright Question: Is Using Covers of Romance Novels "Covered" within Fair Use?

Hi Harriete,
I have a copyright question that you may be able to answer.  I am making a neckpiece (not really wearable) in which I've cut out small sections of romance book cover illustrations.  I will probably produce a small series using similar illustrations.  If I exhibit these online and an illustrator recognizes his/her work, could I be sued?  Or would it be true that since I have altered the work it would be considered OK?  I seriously doubt that I would ever sell huge numbers of these pieces.  Thank you for your help.
Claudia Rush

 

Claudia,
In short, I think you could use portions of the cover illustrations if you are able to transform the images within your work to make your own commentary about romance novels or about these particular images.

Please refer to my Fair Use Guidelines which briefly itemize five key factors necessary to be considered Fair Use.  In this post, I'm going to add a bit of artistic critique as well.

To paraphrase Fair Use Guideline #3, Work using found objects (e.g. romance novel illustrations) needs to impart parody or commentary that is different than the original work.  Right now, I don't see a differentiating commentary. I see couples kissing or staring into each other's eyes associated with heart shapes and flowers.  These objects and images seem to be reinforcing the original intent of the illustrations.  To be blunter, Fair Use does not cover the use of copyrighted images just because they are convenient or they already say what you want to say. 

While I am very supportive of artists using found materials under the concept of Fair Use in Copyright Law, I am concerned that this neckpiece is not pushing the images into new territory. Specifically, I don't interpret a larger commentary or parody about romance novels or about romance in your work.  The images could just as easily be from movie advertisements or magazine ads or from other sources including photographs that you took yourself.

What alternative statements could a neckpiece inspire to fit more clearly under Fair Use? The deeper meaning will make your work stronger and protect your fair use of the copyrighted covers more effectively.

How would you do that? For example:
Put small books (referring to the romance novels) on the necklace opened with bleeding hearts;
Put thorns on your necklace (you said they weren't wearable);
Put small pens on your necklace (that looked as if it were thorns); 
Put a fabricated silver pen or pencil on the necklace that was bleeding or exploding with warped hearts;
Add paper Saccharine or sugar packages as "leaves" or "flowers".  

I just suggested a variety of ideas. You don't have to use any one of them. The issue is that the reason for using the copyrighted images in your work needs to make this necklace more about your own unique statement or some interpretive commentary about the illustrations or about the romance novels.

Your Fair Use commentary or parody could be about how the storyline of romance novels follows a predictable or repetitive pattern. Another idea might be how romance novels sell the idea of romance which is thin like a piece of paper. Or the saccharine sweet illusion of romance from this type of literature.

While all of my opinions are subjective, and to some extent involve a critique of your neckpiece, the point is that Fair Use does not protect the use of found objects simply because they are images you want to copy.  A Fair Use work has to transform the found objects into a new work with a different message. 

Claudia, thank you for sharing your work for discussion.  It takes guts to make a piece and then put it out there for other people to review.  I hope this conversation will only make future work stronger and more effective.

If more people are willing, I might try critiquing other work in this blog in the future. 

Harriete Estel Berman

* According to the online ARTS Magazine of the Arizona Daily Wildcat the romance novel industry makes up 55 percent of paperback publishing in the United States, and more than 200 million books are sold each year, according to Desert Rose. The genre, and its various sub-genres, have their root in Samuel Richardson's Pamela, according to Desert Rose. The image source can be found HERE. 

This post was updated on January 13, 2022.