Happy belated birthday Walt Disney!
I narrated, produced, and published the public domain book The Story of Walt Disney by Diane Disney Miller and Pete Martin. I was thrilled that it released on 5 December in celebration of the 120th anniversary of Disney’s birth.
While I’m excited to announce this audiobook, I’m writing this post to talk about its cover art, and more specifically, information about image usage that may help you if you publish your audiobooks.
I’ve previously written about Copyrighted Images in a Public Domain Book.
That article discussed the images inside the book. Of course, the copyright laws also apply to the cover art, so I encourage you to read it.
Today, I want to talk about the laws concerning right of publicity. (Insert my usual disclaimer about not being a lawyer though I have voiced many in audiobooks.)
Since I published the Disney audiobook, it was up to me to acquire appropriate cover art for it.
If you license the audio rights to a book still protected by copyright, you may be able to negotiate the usage of the cover art as part of the deal, depending on who owns the image. Even though a book may have entered the public domain, you can’t assume that you can use the original cover on your audiobook.
When the hardback book was published in 1957, it had this illustration on the book jacket. The design was carried over to the later paperback edition.
I learned in my research that Al Dempster was a Disney artist who worked on backgrounds in numerous movies and the illustrations for Golden Books. Walt thought Al was a wonderful artist and even owned and displayed some of Al’s paintings in his home.
I felt sure that Walt owned the copyright to this image in part because I saw a Disney work-for-hire contract.
It really wouldn’t matter, though, because all of those drawings of his copyrighted characters could land me in trouble with his company, which I believe is one of the most litigious companies on the planet.
Search For New Image
Although I couldn’t use the original art, I wanted to keep the illustrated look of the cover. I found great drawings of Walt in these First Day Covers (FDCs) sold on eBay.
I spent time researching the companies that produced these FDCs but kept running into dead ends. Many companies have merged or dissolved. I tracked one to the last owner but never got a response to my voice message or email.
“Fine”, I thought. “I’ll just find a great public domain photograph of Walt Disney and use it on my audiobook cover.”
Using my article Tour of Sites With Public Domain Art as my guide, I looked on various sites. I loved this picture of Walt in 1946 that I discovered on Wikimedia Commons.
The page notes that this image was a publicity shot from the Boy Scouts of America and not copyrighted.
Before I made a final decision, I wanted to check the motherlode of Disney pictures at Getty Images.
Several pictures including this one immediately stood out, and for more reasons than the aesthetic appeal.
You see that commercial use is restricted. In addition, it states “Not released.” These 2 words caused me to do more research and are the foundation for this post.
The Getty site explains that you need a release to:
ensure that the people and owners of property in the image or video gave permission for the image or video to be used for commercial purposes.
Right of Publicity
The right of publicity is the underlying reason why a release is needed. The Cornell Law site defines the right of publicity this way:
The right of publicity prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.
In the United States, the right of publicity is largely protected by state common or statutory law. Only about half the states have distinctly recognized a right of publicity.
If the right of publicity seems familiar, you may have heard about the recent case where voice actor Beverly Standing sued TikTok in federal court for using her voice without her permission. (The case was settled out of court.) The first line in the legal complaint asserted
This is a civil action for injunctive relief and damages for violation of Plaintiff’s right of publicity…
With an extraordinary number of celebrities making their home in California, I felt sure that state would be one that recognizes the right of publicity.
“But didn’t Walt Disney die in 1966?” I can hear you ask. “Wouldn’t his right of publicity have ended at that time?”
Not only does California have right of publicity laws, but the state created a separate law to protect the posthumous right of publicity which the Digital Media Law Project summarized
lasts for 70 years after death, and is considered a freely transferable, licensable, descendible property right.
Therefore, Walt Disney’s image wouldn’t be free to use in commercial ventures until 2037! In the meantime, his heirs could sue anyone who slapped his picture on their product.
It’s a good thing I couldn’t find the owners of the First Day Covers. Even with their permission to use their image, they could never give me Walt’s release.
Understandably, I chose to avoid eliminate Walt’s picture from the cover art for my audiobook!
I found a great stock image and changed its colors to match those of Mickey Mouse.
You’ll notice that I also didn’t use Walt’s unique and very identifiable signature. Instead, I found a font that gives a feel of his handwriting.
It may have been Walt Disney’s birthday, but learning about the right of publicity was the present for me.
Robin Siegerman says
This was an incredibly timely article for me Karen, thank you!! I have finally (after over 18 months of back and forth) gotten approval from the estate of a deceased author who wrote a well-respected biography of a long-deceased public figure. In considering the cover design, I will be keeping this right of publicity in mind!
Karen Commins says
Hi, Robin! Congrats on finally getting approval from that estate! Your persistence and dedication have paid off!
It may be that your long-deceased public figure has been gone so long that the right of publicity would no longer apply.
However, I know you’ll get a beautiful cover for your audiobook in any event.
Let me know when you publish! I can’t wait to see it!
Hi Karen…. I fully understand the copyright issue with Disney and the fact that they are very protective of their IP, and I think the cover you settled on was just fine as well, but why didn’t you just hire an artist or illustrator to do an original piece for your cover? I know IP includes the “images and any related content” as original to the owner but there is a fine line between artist’s “original” art as well, especially being “one of a kind” created by an artist. Maybe budget was an issue? Just a thought.
Karen Commins says
Hi, Spookster01! I did think about hiring an artist. While budget was indeed a consideration, I ruled out that option due to many demands and limited time.
Reviewing artist portfolios, finding someone capable of the type work I wanted and in my budget, getting on their schedule, and explaining what I needed just seemed like too many tasks to accomplish in time available.
Since I wanted to publish on 12/5, I had a longer lead time with the distributor than with other projects.
If a lawsuit were brought against me for using Walt’s image, I don’t think a court would care that I hired an artist. The image is still recognizable, and his heirs still wouldn’t be benefitting from the sales of my audiobook.
By the way, a number of other audiobooks about him are on Audible, and more than one of them has the image from the Boy Scouts on the cover. I guess people either don’t know about the right of publicity or have adopted the adage “it’s easier to get permission than approval.”
At least my cover is unique! 🙂
Thanks for the great question.
Lianne Walker says
Fantastic article Karen, again – the cover you chose looks beautiful and very eye catching. It will jump out from the audiobook lists. Congratulations for the launch of the book.
Karen Commins says
Hi, Lianne! Thanks so much for your warm praise for the article and kind words about my cover art!
I hope you’re doing well and looking forward to a terrific 2022!
Thank you so much Karen for sharing your journey and discovery with us, as usual.
Karen Commins says
Thanks for the kind words, Grace!
Melissa Kay Benson says
Very interesting article, Karen. I just love the cover you ultimately created. What a journey. Congratulations and thank you for sharing this knowledge.
Karen Commins says
Thanks for the warm praise, Melissa! This info might come into play for you if you decide to produce that public domain book I suggested to you. 😉