#work-for-hire

There may be a lot going on in the world, but I'm in the middle of testing new covers for my books and the subject of the photoshoots for my series has come up.

Smart people will tell you to start small. Get a premade cover from the many brilliant designers who do amazing things with stock images.

Hell, that's what I'll tell you to do. And I am doing it for a small project, but for my series, ugh. I'm a bit extra.

For Blood & Iron Warriors I needed the same people on for 7 straight books. That's a lot of images of the same models. Given it's a new adult/college and sports romance/football romance series, that meant getting my hands on images taken at the same time period so they don't age.

7 books, 7 covers + back images. Then looking at any possible recovers, that would be nest to impossible to get from stock and match up. Not to mention the marketing images.

And to be fair, I suck at sharing.

Even as a child there's a legend of me being horrible in kindergarten and getting a bit "hostile" about sharing the cardboard bricks, and not much has changed.

Don't get me wrong, I'm happy to donate to good causes, I give things to others, but in my head those things become theirs. Mine is still mine. I kill every bug that comes into my house because I didn't invite them. It's my house. They need to make their house somewhere else.

I know, I know, it's weird, anyway that glitch in my personality and the difficulty in finding matching images for 7 books, plus the cost...led to me to say.... oooh yeah, an exclusive shoot.

Now, I have an advantage. Before writing I was in law, and before that, I was in marketing for 10 years.

Which meant for me, photoshoots are fun. Don't get me wrong, they're a ton of work, months of it in fact, but they're an amazing experience. Intensively creative, and give you the creative freedom to explore your story in the visual medium. Also, for us control freaks and detail divas, it gives you better control over the final outcome.

Of course I am not a photographer. My talents and experience make me qualified to be an art director, but the first thing I did was reach out to photographers in the industry. Honesty, I didn't want to do the work from front to back. I'd done it back in my marketing days and I knew what it would take to do it.

I won't go into detail about why that path didn't work, but what I will say is, based on what I wanted creatively and legally, and my experience working with commercial photographers, I made the call directly to the agency representing the model I wanted to work with, and a local photographer who, while not having cover model experience, had plenty of experience and charged per hour and gave me a buy out.

That's not something that everyone can do. I've been an art director on a set. I've called agency and know the legal issues. But it worked for me and it was a blast. Keep a fun set, keep it moving, and everyone's happy. It also meant was that instead of paying between $700-$1500 per exclusive image of my model with no merchandising and marketing rights... I paid 2 models for 2 half day sessions, my photographer for 2 from Cleveland, the studio rentals, and ended up with over 1500 images and the right to do whatever I want with images as long as it's for this series.

I'm not going to give the exact amount it cost, but the amount is less than the first round of front covers of the exclusive covers of my model.

And now that I'm testing new covers and working on the boxset, the cost savings is huge.  And keep in mind that many of the exclusive licenses have time limits, and for slow-poke writers like me, I don't lose the rights. Ever.

And bonus, I have so many images for marketing it's ridiculous. I was able to get legitimately meta.

Then there's the copyright. Normally, the photographer owns the copyright. Full stop.

Authors need to understand that and trace the ownership of the images they use in their marketing. Which was hard a year ago, and going to be even harder going forward with AI art. When yo know who owns it, then you have to get the rights, and obey the rights, But, when you do the photoshoot yourself, and do it work-for-hire, it's not an issue.

Which means I own enough pictures to recover for over 20 years with the same people in different poses. I may change the tone of my covers, but the people will be the same. Which saves me money. A lot of money. And the images will never be mistaken for someone else's book.

When the book is a series it makes sense. When you have a primary skill set it makes sense. When you are a child with an inability to share it doesn't make sense, but it's slightly understandable. And when your models are absolutely lovely, it's fun enough that sense flies out the window.

Shepard Fairey, the visual artist who created the iconic “Hope” poster of Barack Obama, and the Associated Press have been embroiled in a federal copyright case over the past year which threatens to draw a bright line in the sand of fair use judgments.  The AP argument asserts that since Fairey's image was based of of a particular AP-owned poster, Fairey could not, and should not have used the photo without their blessing.

The AP claims that their ownership is based on a  "work-for-hire" arrangement with Manny Garcia, a photographer who had worked for them only 5 weeks and who himself claims to own the photo at the heart of the controversy.   Garcia granted Fairey his personal permission to use the image, and consequently,so the AP argues, Fairey should have sought the AP's permission via a fee-based license agreement prior to using its image to create his campaign poster. Not surprisingly, the AP seeks credit and (alas!) compensation for Fairey's use of its photo.  On the flip side, Fairey hopes that a fair use defense will defeat the copyright infringement claim.

So was Fairey's use really fair?  Let's take a look.  In essence, the fair use provision of the copyright law allows copyrighted works to be reproduced under certain circumstances, including criticism, comment, news reporting and in educational materials.  Fair use is one of the strongest defenses to copyright infringement, albeit a litigation defense,  and was created as a safety valve to promote creativity and free expression.  Federal judges use the following factors when determining whether any particular use of a pre-existing copyrighted work is permissible under fair use:

What effect on the potential market for or value of the copyrighted work does the new use have?

Was this a transformative use?  In other words, was the purpose and character of the use significantly different from the original work, including whether such use is of a commercial nature or is for nonprofit educational purposes

Was the copyrighted work factual or fictional?

How much of the original copyrighted work was used for the new purpose?; and

What effect on the potential market for or value of the copyrighted work does the new use have?

LJ Smith was the original writer for the popular series of Vampire Diaries novels, starting back in 1991, but in 2011 was fired by her publisherover a dispute as to what should happen in one of the stories. Considering that she was working the entire time under a somewhat extensive work-for-hire contract, meaning that Alloy Entertainment owned the property and works in their entirety because she was brought on to create the series for them, the series continued on without her even though it still had her name attached.

Well, with Amazon dipping its toes into the world of fan fiction by letting people sell stories set in specially approved properties, it turns out that LJ Smith had an interesting opportunity.

Yes, for those of you jumping ahead, the original creator and author of the Vampire Diaries novels is now writing and selling Vampire Diaries fanfiction [thanks to The Daily Dot for this one] in addition to her other projects.

They’re also in the Top 5 Kindle Worlds sales at the moment, and the top two spots in the Teen section.

I know that I’ve seen original authors accused of writing fan fiction in their own worlds before, but finishing the a trilogy as she originally planned instead of the direction the publisher took it (and getting 35%, IIRC, of the money from the sales) after getting fired?