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This question contains an example of a potentially infringing work, but I believe it is fine because the book does not contain copyrighted images and is basically a discussion of another book.

My understanding is fair use applies as described by another Stack Exchange answer here.

I've seen "unofficial books" at Barnes & Nobles that contain copyrighted images such as the one below. I believe the images infringe copyright in such cases, as the author is not the copyright holder.

an image of a Pokémon book written by an unaffiliated author

Who is likely to get sued, the publisher or the author?

I feel like the publisher should know better than to publish copyrighted material. Is it their responsiblity?

Disclaimer: This is an example. I don't know if the book above actually has permissions to use the art. For the sake of this hypothetical question lets pretend the artwork was not authorized.

  • What agreement do the author and publisher have? It's almost certain that the publisher has terms disclaiming all liability and required the author to affirm all content usage was legal, with evidence if possible. Secondly, why do you believe there is a copyright violation here at all? License for using images does exist. "Unofficial" just means it wasn't written and produced and endorsed by the original creator/property owner. It definitely doesn't mean "done without any permission at all". – Nij Jan 19 '18 at 21:12
  • @Nij The publisher may have such a clause in the contract, but that doesn't mean they can't get sued. It just means they can later sue the author for breach of contract. – D M Jan 19 '18 at 21:16
  • I am directly responding to the misleading statement "the publisher should know better than to publish copyrighted material". The majority of what they publish is copyrighted. The point is that they have permission from someone to use that copyrighted content, via the author's declaration that the author is able to give that permission. The publisher doesn't care that it's copyrighted, only that they can't make a loss from breaching said copyright by throwing the responsibility in the author. @DM – Nij Jan 19 '18 at 21:26
  • @Nij The publisher's contract with the author has no bearing on whether Nintendo can sue the publisher (although if the infringement was unintentional that could reduce damages.) It just means the author breached the contract and is liable to the publisher. But if the author has no money, the publisher is out of luck. You can't make a contract with someone saying that a third party isn't allowed to sue you and expect the third party to be bound by it. – D M Jan 19 '18 at 21:58
  • I am talking about a specific statement to which your comments are tangential but not especially relevant. – Nij Jan 19 '18 at 23:34
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Assuming for the sake of argument that the book is infringing, either the author or the publisher (or both) may be sued. Copyright includes several rights - the right to make copies, the right to create derivative works, the right to distribute and sell copies, etc. Both the author and the publisher are going to do one or more of these things in the act of writing and publishing the book. Being ignorant of the copyright status is not a defense to infringement, although if they were "not aware and had no reason to believe that his or her acts constituted an infringement of copyright", statutory damages may be reduced.

It's possible that the publisher has a clause in the publishing contract saying the author must pay if the publisher gets sued. However, this won't prevent the lawsuit from naming the publisher; it just means the publisher can later seek money from the author.

Determination of fair use is a multi-factor test. I can't say for sure whether the use of the image would or would not fall under fair use, especially without reading the book (context is important), although at a glance it seems unlikely that this would be fair use. The nature of the use seems to be cover art for a book (probably against fair use), the nature of the copyrighted work is a creative image (against fair use), and it looks like the entire image is used (against fair use.) I'm not sure how the use of image will impact the market for the original, although the image owners could argue that allowing anyone to use the image freely would impact the market for official licensed use.

  • I think you've ignored a likely real background; the author would have permission to use the image in exchange for a sum or rate from the sales. – Nij Jan 19 '18 at 21:22
  • @Nij That's why I prefaced it with "Assuming for the sake of argument that the book is infringing". We can't know whether or not they got permission, so it's a hypothetical. – D M Jan 19 '18 at 21:52

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