What to Do About Online Art Theft & Plagiarism
Has Someone Stolen Your Art or Design?
Are you sick of your artwork, design or photography being stolen by commercial enterprises or small businesses and used to generate profits you will never see? Often these companies employ graphic designers or "artists" who aren’t receiving enough pay or time to deliver original designs, hence they hop on the web for inspiration and “borrow” (in other words, steal) ideas for artwork.
Frequently, the original artists will be angry at the graphic designers of these companies, but sometimes it is not entirely their fault. They are rushed, stressed, inspired by your designs and trying their best to please all parties in five minutes. Though they shouldn’t do it, the blame lies with the companies themselves, who employ people in factory-like conditions and do not veto concepts, designs and artwork throughout the design process. Then, there are always some well paid rogue designers who cannot stop stealing and will not provide original concepts and a design trail.
It’s all very well to supposed to be flattered by people copying you, but where does all this thievery help you, the artist? While the internet is a great tool for sharing, it is not meant to be used to generate profits for multinationals off the backs of working class creators. This hub provides some potential solutions that can help creators get back some of the payment they are due.
Many artists worldwide use the process below to generate a living out of their artwork (I will protect their anonymity by not mentioning names here). Some of them make millions of dollars. Instead of chasing buyers, they chase the companies who copy the designs. It is quite a legitimate form of compensation and doesn’t cost much too much to achieve.
Legal Disclaimer: Please note that this article does not constitute legal advice in any form. The author is not a lawyer and will not be held responsible for any legal activity resulting from reading this article.
Step 1: Find Out Your Country’s Copyright Laws
You need to find out the definition of a copied artwork, which may be given as a legal description or as a percentage of the total concept or surface cover (eg more than 20% copied constitutes copyright infringement, whereas less than 20% does not).
You will need to check your country’s copyright laws to determine if copyright infringement has indeed, taken place in each instance of theft.
100% duplicated copies usually do constitute copyright infringement (except for the "fair use" clause, which includes personal use, education, satire, critique and other non profitable activities).
Remember, you automatically own all copyrights to your work from the moment of creation.
Also note that copyright law does not protect ideas, only the end results of ideas. For example, you cannot copyright a style or a subject, only an actual artwork.
Did You Know?
If you are in the United States and planning on actually pursuing any lawsuits in regards to thieves commercially manufacturing your artwork, you should make sure to register all artwork (within 3 months of creation) with the United States Copyright Office for a small fee.
This does not “protect” your artwork any more than a copyright symbol does, but it can make a huge difference in getting attorneys fees and statutory damages covered by the infringer.
Statutory damages are a set amount of money by law that you would receive, instead of having to prove in court how much profit you lost and being paid a potentially lesser amount instead.
Registering artwork can get expensive quickly if there's a lot of artwork to register, but it is worth it if you are becoming a prominent artist and people seem to keep stealing your artwork.
Alternatively, if you are not in the USA, contact your country's Copyright Office to see what benefits they might offer.
Step 2: Prepare, Monitor & Protect All Artwork Online
Low Resolution Images
It’s important to use only low resolution images on the internet. When you “save for web” in Photoshop, it automatically converts your image to 72dpi (dots per inch). Use images that are 72dpi and 600 pixels in height and width (or less). If you post a bigger image, or a 150dpi – 300dpi image, people can use it for quality commercial printing and upsizing, and you don’t want that!
Watermarking images is not always the best answer, as it can detract from your artwork and people can easily take the watermarks off in Photoshop. Graphic designers can still copy concepts, even when they are watermarked. Watermarks only deter the general public who might not have access or knowledge to remove watermarks. A subtle copyright watermark is useful for stating your rights, but doesn’t stop theft.
No Right Click
Using a script to prevent users from right clicking on artwork is a great way to stop the general public from stealing images. However, with simple keyboard techniques (that I won’t reveal here), No Right Click can be worked around fairly easily by those in the know.
The best way to protect your artwork online, apart from never putting it up in the first place (and that’s no good to you), is to prepare artwork appropriately, monitor artwork on the internet and respond to all copyright infringement as it occurs, while extracting money from offenders.
Step 3: Locate Stolen Artwork Online
Aside from Google Alerts, there are a few other ways to find out if your artwork has been illegally reproduced.
Google Reverse Image Search
Install the Google Chrome browser and open it. Then go to Google and type in something in the web search box, then click on “Images” at the top of search results. Get a jpg of your artwork from your computer and drag it onto the search bar where you’d normally type in something. You will see a new window open and put your image where it says “Drop Image Here”. Google Image Search will upload your photo and provide urls and similar results, which you can then inspect at leisure.
TinEye Reverse Image Search
TinEye is the first image search engine on the web to use image identification technology rather than keywords, metadata or watermarks. Upload an image (or a URL) and TinEye converts the image into a digital “fingerprint” and compares it to all other images in its index (tens of millions are added every week), then gives you the results. It finds exact matches, not similar images (unlike Google Image Search) and can find matches that have been cropped, edited and resized. There are even different TinEye extensions you can add to your web browser.
Manual Google Search
You can try searching in Google Images for your artwork by topic, then add additional details like "cushions", "clothes", "mobile phone covers" etc. For example, I found Ashley Percival's artwork was copied because I typed "painted owl cushions" into Google and viewed the images to find them, though TinEye didn't find them and neither did a Google Image Search.
Artwork Reproduction & Manufacture
If someone’s commercially reproducing your designs, you are entitled to get compensation and justice.
It might help if you think of the offenders as customers who haven't paid yet, who need to be "educated" (ie threatened) or negotiated with in some way to make them pay for using your product. Apologies are not good enough. Removing the product is not good enough. They used it, and they need to pay for it. After all, you don't borrow and use THEIR product for an indeterminate timeframe and then apologise and return it, do you?
Step 4: Consider the Potential Gains
Think about the ramifications of the use of the artwork by the infringer and how best to deal with it.
For example, if someone has stolen your artwork and put it on a T-shirt in an online community store like Threadless or CafePress, the best way to deal with it might be to contact the site owners and get that person’s account banned and the T-shirt removed. The reason this method should be used is because the site owners might not know it was stolen artwork and would no doubt have third party liabilities excluded from their legal responsibilities, so a lawsuit (or even a threatened lawsuit) would be useless.
However, a much bigger site like Alibaba or Ebay, that houses hundreds of companies that reproduce stolen artwork on a massive scale deserves the full force of the law, as do stolen artworks entered into design contests with a high cash prize, or clothing companies who sell many clothes with your design on them.
Consider how much profit the offender has gained from it. There's no point in being satisfied with an apology if they sold hundreds or thousands of items (you should be getting financially compensated) but it is silly to conduct a lawsuit over five sales. A reasonably sized invoice (with extra fees for unlawful use), along with a Cease & Desist Letter from a lawyer is enough to scare most of them.
Step 5: Gather Evidence
Grab some screenshots of the stolen artwork and note the date and time of your discovery. Note the URL of the website and (if you can find it), the date that the webpage was published. You will need the evidence later on, so get it while it’s still there! You might want to check if there are any other instances of the artwork with Google Image Search and TinEye too.
What Is a Cease & Desist Letter?
The purpose of a Cease & Desist Letter is to legally state that you would like the infringer to completely stop using your artwork without your permission, and to remove it from the public eye in all mediums, otherwise further legal action will be taken against them. Include an invoice or notes about how they can compensate you for the unauthorised use of your artwork to date.
Don't Recycle the Lawyer's Letterhead
It would be illegal to get a lawyer’s form letter and reproduce the letterhead without their permission. Do not do this or you will have a big legal problem because the recipients of the letter will contact the law firm and they’ll find out. However, you can use the text in your first paid C&D Letter to formulate your own at a later date (on your own letterhead).
Did You Know?
If you are an artist, any expenses incurred in dealing with stolen artwork may be potential tax deductions. Check with your accountant for full details.
Step 6: Send a Cease & Desist Letter
Here’s the fun part – where you can take action about the copyright infringement. You will need to choose if you will be using a law firm for a Cease & Desist Letter or if you will be dealing with it yourself.
The benefit of using a law firm is that your letters will be taken much more seriously (and therefore compensation might be more forthcoming), plus a lawyer can correctly input the legal text with the right threatening tone that you might have trouble with yourself.
If a letter does lead to court action, the paper trail that the lawyer collects is bound to be more official than your own. But not everyone can afford a lawyer, so it’s best to determine what costs are involved before making decisions.
Find yourself a reputable or well known law firm. It’s hard to impress anyone with a threatening letter if the law firm appears to be a backstreet outfit.
Phone the law firm up and ask for a short consultation (hopefully for free) to discuss getting a quote on some work. In the first consultation, explain you are an artist and that you need a Cease & Desist Letter, sent along with an invoice, that you can use over and over again (with details slightly changed) in order to threaten companies who have infringed your copyright.
Explain that you don’t have much money and would not be pursuing legal action unless it will be very lucrative to do so. Have a look at the costs. I know from experience that a letter like this (not art related) in Australia cost me $100 but it worked and I got my money back and then some! If you only have six letters to send, then paying the lawyer for a form letter might be an option.
If you have hundreds, then you might want to do it yourself or pay for the first Cease & Desist Letter from a lawyer, then create your own after that, using the right legal text on your own letterhead. Alternatively, if you have a friend who is a lawyer and they would be open to assisting with a recyclable form letter, this is the time to call them.
What Copyright Law Recognises As Art
Include an Invoice
Always send Cease & Desist Letters to CEOs or heads of companies, not other people. They are the ones who make the decisions and understand the ramifications of adverse publicity. You may need to research or phone them anonymously to find out who they are and their contact details.
Choose whether to include an invoice with it, or word the Letter to be open to negotiation on compensation. Price the unauthorised use of your artwork accordingly.
As a guideline, some people like to charge four times the full priced rate of the work as a sort of "fee" for the infringement.
DIY Bootlegger Style
Here is another type of DIY, based on the "don't get mad, get even" school of thought. You have to applaud Paul Richmond's style in dealing with an Ebay seller Cai Jiang Xun, who was mass manufacturing his paintings. Full story here: http://paulrichmondstudio.blogspot.com.au/p/ive-been-bootlegged.html
Examples of sample Cease & Desist Letters can be found online with a Google search.
If you are doing the Cease & Desist Letter yourself, you will need to decide if you will enclose an invoice for a specified amount, or if you will be open to negotiation about compensation. If you send an invoice, make sure that, to the best of your knowledge, they can afford to pay your invoice. If they are a small corner store, do not ask for $10 million unless they've made $10 million from your artwork.
Making sure that it is a reasonable amount they can pay means they will be more likely to pay. But don't make it too cheap either. If you are open to negotiation about the amount (ie, you don't know how widespread the damage is) then threaten them in the letter and put the "open to negotiation on a settlement for the unauthorised use of my artwork" comment at the bottom of the letter, so they can see it is an easy way out.
A good way to show a head of a company your proof of infringement is to create an image and print it onto a photo. Put your artwork on the left side of the image, with “Original” typed on it and put the infringing art on the right side with “From [url of offending website] [date screenshot was taken]” typed, so the CEO can immediately compare the artwork.
Also, create a separate photo showing a screenshot of the web page with the offending item, so that the URL and their company logo can be clearly seen. They may need to be A4 photos.
The idea is to scare the CEO with good looking hard evidence, so using photos instead of a grainy home colour print out is absolutely necessary. Make sure all materials in the envelope look serious and professional, otherwise it will be a waste of time. Recreate any sloppy looking invoices, use business envelopes if possible and make that Cease & Desist Letter look like you are serious!
Send the Letter by registered post. There are two reasons for this – firstly, you need to know it has been received at the other end (after all the time you’ve put into it), and secondly, it’s another scare tactic for the CEO. He/she gets this professional looking letter, which is tracked and with slick evidence inside, a seriously threatening C&D Letter and a businesslike invoice. They would have to be pretty callous to ignore it.
Nancy Farmer Blogs About Fake Artist Wendy Marani
- Wendy Marani: The Love Rat of Plagiarism | Nancy Farmer's artwork
"I thought I was special, but now I've found she's been plagiarizing around!" Imitation is the sincerest form of flattery, but what's a girl to do when she finds she's not the only one being flattered? This is what happened to UK artist Nancy Farmer,
OK, so after all that hard work and the unleashing of your anger on poor, unsuspecting CEOs (most of whom won’t know about the infringing artwork before your letter arrives), it’s time to relax. You’re probably going to get a certain rate of return on your own letters, while lawyer Cease & Desist Letters get a much higher rate of return (the CEOs get scared you WILL pursue legal action, after all, you’ve already contacted the lawyer).
If you don’t hear from anyone in a reasonable time frame, then you can take other actions to make yourself feel better about the whole distasteful episode:
- If it was a widespread infringement and a large amount of compensation could be obtained, it may be wise to pay to take further legal action.
- Contact a variety of media organisations and offer your story to them for a fee. You’d be surprised how many hungry journalists are looking for stories on this.
- Write an article about your experience and share it all over the place, as well as using SEO techniques, so it comes up in search results when people look for the company online (this can scare them into paying too, I’ve done it and it’s worked!) But you have to take down your articles after being fairly compensated, though no other blog or news outlet needs to.
- Write on public forums about your experience so that it pops up in search results for the company too. Remember, it isn’t defamation if it is the truth, and you have the evidence to prove it.
- Create new artwork about the experience and sell it. For example, Eddie Colla hit back at Walmart with his new, limited edition print and a message for Walmart included on it.
Stopping Fraudulent Artwork At Customs
- Arts Business Institute | Your Work Has Been Knocked-off. Now What?
Steps to take in the event that your designs have been stolen and manufactured in another country.There are protections in place, including Customs Block.
Step 7: Class Action Lawsuits
I am not the best person to advise you on this, but if you notice that there are lots of other artists having their work stolen by the same company, you might like to consider a class action lawsuit.
Basically, it involves contacting the other creators, getting together to have a lawyer consultation on the matter and a quote on costs, then proceeding as the group agrees.
The benefits of class action lawsuits are that lots of publicity can be generated around them, so the company is more likely to pay up, plus costs are less per person and returns are greater per person. All creators should log details of infringements and gather evidence in preparation for these kinds of lawsuits before they become too public.
Beat Chinese Sweatshops With Quality & Marketing
- Have You Been Knocked Off, Ripped Off and P*ssed Off? | Artsy Shark
Knocking off artists work is unfortunately pretty common. Some examples of bootleggers and what the artists did to overcome this type of theft.
The Most Important Bit
All of this may sound like a lot of work, but as previously mentioned, it can be very lucrative and is definitely worth a try. There’s nothing quite like finding out your original creation has been taken without permission and used to generate decent profits for others while all you are left with is anger and resentment. Don’t destroy your creativity with negative feelings – take action, feel better, move on and keep creating with your soul feeling the way it should!
Please note that this hub does not constitute legal advice in any form. The author is not a lawyer and will not be held responsible for any legal activity resulting from reading this hub.
Questions & Answers
© 2014 Suzanne Day