Brown Bagging Banned Books

Dear Rich: My nonprofit foundation wants to create and sell a calendar of bookmarks with photos of books that have been challenged or banned. The photos show the cover in a scene or "still life" that relates to the title. In all cases, the title can be seen, even when much of the book cover is otherwise obscured (at least 10% is obscured). Some book covers also have artwork by artists who illustrated the book. Only one of the books is in the public domain. The Foundation is planning to sell about 2000 editions of this 16-month calendar bookmark. Do we need permission from each publisher if we use the jacket or cover of the book in a composed "scene" where the jackets are obscured by at least 10%? What if we photographed the books wrapped in brown paper with the title handwritten? Sorry, we wanted to answer your question during "Banned Books Week," but time just got away from us. Hey, we like your brown-bag idea (it works for some) and no permission would be required. 

Still Lifes. As for your "still life" concept, the safest course is to get permission for the book cover art. At the same time, if someone says no, or you can't locate the owner, you can probably get by without permission. You have a strong argument that your work is transformative and constitutes fair use. BTW, the Dear Rich Staff isn't sure what you mean when you write of using "artwork by artists who illustrated the book(s)." If you have their permission for the  additional art, great. Otherwise, you might be pushing the fair use boundaries by reproducing non-cover illustrations.

Trademark and titles. Single book titles are rarely protected -- that's why your brown bag approach is okay. However, Harry Potter, because it's a series, is federally registered and Warner Brothers owns the rights for calendars (Reg. No.3419797). For that reason, you might not want to use Harry Potter and the Order of the Phoenix on your cover, packaging or advertising. That also puts you in a better position to argue that your internal use of Harry Potter is editorial and non-infringing ... should the issue arise.