LibraryThing covers

Last week LibraryThing announced that they were making a million free book covers available. A LibraryThing Developer Key is required, which any LibraryThing member can get.

There are some rules:

• Retrieve no more than 1,000 cover per day.
• If covers are fetched through an automatic process (e.g., not by people hitting a web page), you may not fetch more than one cover per second.
• Do not make LibraryThing cover images available to others in bulk. You may cache bulk quantities of covers.
• Use must not involve or promote a LibraryThing competitor.

Tim Spalding admits that this service competes with Amazon web service and other commercial vendors, but LibraryThing’s Terms of Service are far more open.

After the announcement I wondered how this was legally possible for such a large number of covers since there are so many variations of rights regarding cover designs. Who holds the rights? The publishers? The designers? Third parties? It's likely it's a wide variety of all of the above. Should we start talking about orphan work book cover designs?

Yesterday Mary Minow posted about this at LibraryLaw Blog. She posits an interesting possibility that this could fall under section 113. Read the comments for more discussion from Peter Hirtle about whether this might also be transformative use of thumbnails that could possibly be covered under fair use. Peter also rightly mentions the market for cover images, since effect on the market is one of the tests for fair use.