Last week we got to enjoy watching a bit of a kerfuffle develop after Canadian news outlets trumpeted the availability on Amazon.com of a print-on-demand edition of the first three “Anne of Green Gables” books which featured a “racy” cover – from CBC Books:
The red-headed, freckled, stick thin loveable Anne Shirley dreamed up by Lucy Maud Montgomery — first for Anne of Green Gables and then a number of sequels — has turned into a busty, blonde haired beauty. A new cover of the trilogy boxed set shows Anne’s makeover from homely orphan to beauty queen.
“There isn’t one element of that picture — from the arm position, to the hair, to the face, to the shirt, to the body — that says Anne of Green Gables in any way,” Beth Cavert of the Lucy Maud Montgomery Literary Society told CBC’s As it Happens.
Various expressions of outrage were duly echoed in newspaper, television and online platforms: the cover image was so incongruous with the textual description of Anne and with previous depictions that many fans considered the new imagery an affront. Because Lucy Maud Montgomery, the author of the books, passed away in 1942, copyright in the books has expired and the books entered the public domain in 1993 – allowing anyone to create and sell books containing the series’ texts, and to put essentially any cover image they like on those books. (I’m going to ignore the various unique rights that are enjoyed by various parties in connection with the Anne of Gables books – interested readers may want to consult Andrea Slane’s “Guarding a Cultural Icon: Concurrent Intellectual Property Regimes and the Perpetual Protection of Anne of Green Gables in Canada”.)
But let’s imagine for a moment that Lucy Maud Montgomery was still alive or that the books were otherwise still protected by copyright (i.e., imagine LMM had passed away within the last fifty years) – can an author object to a publisher’s choice of cover art? Could a cover be so bad, so inconsistent with the author’s vision for the book, that it actually gives rise to a right of action on the part of the author?
Potentially. There are two conceivable routes to such a claim: breach of contract or infringement of moral rights. An author’s publishing agreement may be negotiated to include some kind of approval right on the part of the author over the cover art. Actual rights of approval are relatively rare, and largely a function of the negotiating leverage which the author brings to the table (i.e., popular authors are more likely to obtain this kind of concession from their publisher); more common is the right of “consultation”, a more ambiguous “right” which boils down to “we’ll talk to you about the cover, but we retain final decision-making authority”. Where an author enjoys an approval right and their publisher publishes a book with a cover that the author did not approve, the author would be able to bring a claim for contractual breach. While damages might be difficult to prove, the author could seek an injunction prohibiting the publisher from printing or selling editions of the book with the impugned cover, which would have the effect of removing the cover from circulation and (hopefully) causing the publisher to re-issue the book with a new cover.
But that only works where the author has the requisite contractual relationship with the book publisher. What if the book publishing contract does not give the author approval rights over the cover, or what if, worse, someone who has no contractual relationship with the author whatsoever prints a bootleg version of the book with an atrocious cover? A cover could conceivably be so atrocious that it infringes the author’s moral rights. The Copyright Act (Canada) accords authors certain moral rights (see Sections 14.1, 14.2, 28.1 and 28.2), among them the “right of integrity”, which is described in the following terms:
28.2(1) The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author, (a) distorted, mutilated or otherwise modified….
(Unlike other creative industries such as film and TV production, book publishing contracts do not usually include a waiver of moral rights.) Moral rights last for as long as copyright does – so even after an author dies, their estate (or other heirs) will be able to enforce the author’s moral rights for a period of fifty years from the year of death. In trying to determine whether a (really) bad cover could constitute an infringement of moral rights, two questions would need to be answered: first, is a bad cover slapped onto a novel a distortion/mutilation/modification “of the work”? Second, how do we determine if the distortion/mutilation/modification has prejudiced the honour or reputation of the author?
The first question is actually a little more tricky to answer than you might think. Confronted with a claim from a disgruntled author, I’d be inclined to at least try to argue that a bad cover has not affected “the work” at all: the author’s “work” is the manuscript they turned in – and the publisher might argue that they haven’t touched the manuscript – instead, they’ve just wrapped something around it. That argument might be a little too cute for some judges: arguably wrapping something around a work constitutes a “modification” just as much as would scrawling graffiti “on top” of a painting or sculpture.
The second question, regarding how “prejudice” is measured, poses more profound difficulties. The author’s own views about their honour or reputation having been prejudiced will not suffice: there must in addition be some kind of “objective” support for the author’s views, though the precise nature of that objective evidence is the subject of conflicting guidance in the sparse Canadian caselaw on point. In Snow v Eaton Centre Ltd. (1982), 70 CPR (2d) 105 (Ont HCJ) (where the author’s moral rights infringement claim succeeded, despite the defendants offering expert evidence that no prejudice had been suffered), the court indicated that the author’s own views regarding prejudice were to be given considerable weight so long as the author’s views were “reasonably arrived at”. Subsequent cases (including Prise de Parole Inc. v. Guerin, Editeur Ltee, [1995] FCJ No 1583 (FCTD), aff’d, [1996] FCJ No 1427 (FCA)) indicate that the author is, in order to succeed in their claim, required to demonstrate “an objective evaluation of the prejudice based on public or expert opinion”.
