What to Do When Your Artwork is Used Without Your Permission
(A Guest Post by Linda Joy Kattwinkel, Esq., Intellectual Property and Arts Attorney at Owen, Wickersham & Erickson)
What should an artist do if they discover their work being used online without their permission?
1. Consider whether the use might be “fair use”
Generally, copying your work without your permission is an infringement. However, under copyright law there is an exception for fair use. Fair use is a complex concept, but there are certain uses that clearly fall into the fair use category. For example, if someone has posted your work in order to praise or criticize it, or to report that it is on display at a gallery, that would be a classic fair use. People can show images of work they are directly discussing. Some forms of mash-ups, especially where they combine pieces of many works to make a new and very different work, may also be fair use. On the other hand, it is never fair use to copy a piece of artwork simply to post it as an illustration for a piece of writing about something else, regardless of whether the author credits the illustrator, or gets paid himself for his writing.
2. Send a cease and desist letter
Aside from fair use, when someone posts a copy of your work online, legally, everyone in the chain of distribution is an infringer. So you have copyright infringement claims against at least two infringers: the person who posted the image (usually the website owner), and the hosting internet service provider (ISP) (if the person who posted the image is not the website owner, than you have three potential infringers). The person who posted the image is liable for willful infringement, as he presumably knew that he was copying your image and posting it online. The website owner and ISP are liable for infringement because they are enabling the infringing image to be seen online.
The first step, usually, is to send a cease and desist letter (or email) directly to the person, and/or the website, that has posted the image. Explain that you own the copyright, and you have not given permission for its use on the site. Most people will take it down when they receive your letter.
3. Send a DMCA take-down notice
Even if you don’t get cooperation from the poster or website, you can take steps to get the infringement removed under the new law called the Digital Millennium Copyright Act (DMCA). The DMCA established very specific “notice and take-down” procedures, under which an ISP can have immunity from infringement if it takes down the infringing content when you send them notice in a particular way.
To find out who owns a website and who hosts it, try doing a “whois” search. You can use the Network Solutions site (go to www.networksolutions.com, click on “whois” on the top menu, and follow directions), or many other “whois” services. The search results will give you the name of the domain name registrar, and, if available, the identity and contact information for the owner of the web site (“Registrant Info”) and the ISP (“Technical Info”). If not, you can try going to the listed registrar’s website to do a search.
With that information, the next step is to find out if the ISP has a registered agent to receive an infringement complaint under the DMCA (most service providers do). The law requires that these agents be registered with the Copyright Office in order to qualify for the notice and take-down immunity. They can be searched online at the Copyright Office web site (go to www.copyright.gov, click on “Online Service Providers” under “Search Copyright Records,” then click on “directory of agents”). Most ISPs also list their agent on their own site, along with a step by step explanation of how to follow the DMCA complaint procedure. For example, see Earthlink’s posting at http://www.earthlink.net/about/policies/dmca. You can also look up the statute itself on the Copyright Office site (go to “Online Service Providers” and click “Digital Millennium Copyright Act,” then look for Section 512(c)); however, the statutory wording is a bit more obtuse. Under these procedures, the ISP is required to take down the infringing material when duly notified by the copyright owner.
If you are not able to find a registered agent for the ISP on the Copyright site, that means the ISP will not be eligible for immunity from copyright infringement under the DMCA. However, you or your lawyer should still write a “cease and desist” letter to the ISP demanding removal of the infringing web page. Most ISPs will comply with such cease and desist letters in order to avoid a copyright infringement lawsuit.
You can also contact the registrar for the website’s domain name. While the domain name registrars don’t have direct control over the operation of their registrants’ websites, most have policies in their registration agreements which prohibit the registrants from using their domain names to infringe the rights of others. So you can tell the registrar that the website is infringing your copyright in violation of its policy, and ask it to take corrective action.
Before you contact the ISP or registrar, you might want to try one more communication with the website owner, this time warning him that if he does not respond, you will have to take further action against him and his ISP for copyright infringement. You (or your lawyer) could demand that the image be removed immediately, or you could demand a license fee for continued use of the image on his site (if that would be alright with you). If he still doesn’t respond, you can contact the ISP and demand that they take it down.
4. File a lawsuit
If all else fails, the last resort is to file a lawsuit. Consult with your lawyer to determine if that is a viable option. If you had already registered the copyright in your artwork before this copying occurred, you will be entitled to recover enhanced remedies (statutory damages of up to $150,000 for willful infringement) and your attorneys’ fees if you win. That is often a powerful incentive for infringers to take down the image and settle your infringement claim out of court.
© 2010 Linda Joy Kattwinkel. All Rights Reserved.
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Linda Joy Kattwinkel, Esq. has been a visual artist for over 40 years and an attorney for 18 years. She received her BFA cum laude in Communications Arts from Virginia Commonwealth University, where she studied with Phil Meggs. She was a graphic designer and illustrator for 13 years before receiving her law degree cum laude from Hastings College of the Law in 1991. As a member of the law firm Owen, Wickersham & Erickson, Linda Joy represents clients and serves as a mediator/arbitrator in matters of intellectual property and arts law. Her particular focus is copyright, trademark and arts law on behalf of designers and visual artists. She is the author of Legalities, an online column on legal issues for designers hosted by AIGA/SF (see http://aigasf.org/community/articles, http://www.owe.com/legalities.htm), and various published articles, e.g., for STEP magazine and AIGA. She is also a member of the GAG Advocacy Committee. Linda Joy continues to paint in plein air and at her studio in San Francisco.
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great work Thomas and Linda!
A great post! Thanks
This is a helpful list of how to handle this problem. It’s great getting the point of view from an attorney who specializes in this.
Many artists are starting to use the Creative Commons License, which enables them to give permission to others to use their art with stipulations. The Creative Commons License I use for my website is the “Attribution – Non-Commercial – No Derivative” License, which means that anyone can use my content, as long as they: 1-Attribute to me and link to my site 2- Don’t use it for commercial purposes 3- They don’t change it at all.
The benefit to using a Creative Commons License is that you are able to spread your art and ideas by making it easy for other creative people to use it, as long as they follow the restrictions of the license. It’s a win-win for everyone, including the people who are now learning of you, your art and your ideas. The other benefit is that you get links back to your site, which can be a great way to spread your creations even more.
I would encourage artists to consider sharing their art in a way that would get your art out there, not by giving it away, but by sharing it with venues that then share it with others. (By giving, we get back ten-fold!)
Thanks for your comment, Maria. You make a good point about balancing the protection of your art with making sure it gets exposure. It’s definitely important to not go so overboard that NOBODY ever sees your work.
GOOD INFO!!!
Good article thanks guys.
@Maria, forgive me for being a cynical old sod Maria, but I also used the same Creative Commons license you refer to initially on my Flickr site. Unfortunately, it didn’t stop at least two sites that I know of from using two of my pics. Admittedly, one did use the link required back to my Flickr site but the other totally ignored me and gave the impression (without saying as much) that the pic was his. A quick email to the site and the photo was taken down.
I have now changed my CC license to the full protection version (sorry but I can’t remember the correct terminology), which is a shame really because as you so rightly say, it prevents my work from becoming more widely recognised etc. But, when I think back at how much money I have spent and how much time over the years I have taken to learn my art and gain my skills, to put food on the table and keep a roof over my children’s heads, I feel really disgruntled when some unscrupulous people just take the P****!
“By giving we get back tenfold”
From your lips to God’s ears…
Regards and with the greatest of respect
Mark
Thanks Thomas and Linda for this great post. Just wondering are the laws you are referring to applicable world wide or just to the American market?
Hi Linda and Thomas, very interesting topic, anyway what you think about the Facebook Terms of Use regarding pictures?
Here the specific language that concerns us from Facebook’s Statement of Rights and Responsibilities
“For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account (except to the extent your content has been shared with others, and they have not deleted it).”
Federico Gemma
Italian wildlife artist
Hi Federico,
I wouldn’t recommend posting anything to Facebook that you don’t want re-used. Not only do they claim the right to use them however they wish, but their privacy settings change whenever they want, without much notice.
Thomas
Thomas – All valuable points of interest and steps to take when unauthorized use of one’s copyright protected art is discovered. The challenge occurs when the infringing party refuses to respond in any manner other than continuing to exploit the stolen art for its commercial gain and notariety.
The only real means of compelling a cease & desist is to file for a preliminary injunction – at the cost of approx $50,000 +, and/or file a complaint which is equally costly. Financing such legal action is often not in the budget of an indie artist. The infringing parties are aware of the price of litigation and all to willing to take the risk they will not have to pay a price.
We faced this very situation with a licensee we legally & rightfully terminated our contract with (see our DMCA submitted to Webster’s Pages at http://www.chillingeffects.org/derivative/notice.cgi?NoticeID=28439&print=yes). It refused all our efforts to address and amicably resolve the matter and continues to illegally use and exploit our art for its commercial gain. The next time I am faced with an infringement, I will take much more aggressive preliminary steps and use my legal funds to prosecute & protect my rights.
When an unlimited legal fund isn’t available to an artist, he or she must ultimately determine the cost/benefit factor and trust that karma will play its course. This is, by no means an emotionally, or psychologically easy step to take, but what doesn’t kill you, makes you stronger, and fortifies one’s creative muse.
>For example, if someone has posted your work in order to praise or criticize it, or to report that it is on display at a gallery, that would be a classic fair use. People can show images of work they are directly discussing. >
I disagree totally, this is not fair use, it’s copyright infringement even if you’re merely JoBlogger not a mainstream journo . The way to do it is to LINK to the original not repost the photo.
Using photos/words without permission not only steals the material, it steals the originator’s page views and website traffic.
Sorry JJ, but that is a situation that the law would recognize as “fair use.” Legally, “fair use” as an exception to the legal requirement to obtain permission is not always consistent with what people consider to be “fair.” For another example, many people believe it is fair to use a work so long as you give proper credit, because that shows honesty as opposed to plagiarism. But under copyright law, giving credit is not a substitute for getting permission, and simply giving credit will not protect a use as “fair use.”
Terri, I agree, the costs of litigation can be prohibitive. In my experience, this kind of beligerance usually happens when an infringer knows that you did not register your copyright before he copied your work. Then he knows you are not entitled to recover your attorneys’ fees, which makes it less likely you will sue, so he takes the calculated risk that you won’t sue. When you have a prior registration, you have stronger bargaining power because it looks to the infringer that you are more likely to sue.
Under US copyright law fair use relates to a portion of the original, the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Using the whole photo isn’t a portion, and fair use thus doesn’t cover it.
http://www.copyright.gov/help/faq/faq-fairuse.html#howmuch
http://www.copyright.gov/fls/fl102.html
Unfortunately, the legal evaluation is more nuanced than that. Fair use is determined by considering and balancing all 4 factors in light of the specific facts. Any particular factor, such as the amount of the work that’s used, can individually weigh against fair use, but the balance of all the factors can still tip in favor of fair use. So, in some cases, the entire work can be used, and it will still qualify as fair use.
This may seem a small point but the step before sending a Cease & Desist should probably be politely asking them to stop using your image, rather than steaming in with all guns blazing.
Not everyone who violates your copyright is an evil tycoon – the vast majority are just ignorant. And you can catch more flies with honey than with vinegar…
Yes I strongly agree with you David. When I find prints of my original designs being used on ebay & etsy on hand made items, I politely introduce myself and tell them this. I see you are using one of my original designs in your work. Would you please not use this anymore as this is from my private collection. People are most always cooperative. I have let a few use the small images on nail art ect…as they are something I do not do. They give me credit in the ads, and many have visited my website as they linked my url to the item. So…It works for me from what I can see.
Right now…however, I am debating sending a letter to another person who is using my dog photos (taken in my studio that I have signed exclusive rights to use) they are using in their cafepress.com shop on products. Tough one. It’s an friend. Not a close one, but have known her many years. It’s not easy is it? I’m so torn. I hate to be an AH, but you get to a point in life where you say…I’m tired of others using my talents and hard work. Thanks for being there artist friends, Jane
Agreed. Your “cease & desist” letter can be a friendly request, a full–blown aggressive demand letter from a lawyer, or somewhere in between, depending upon the circumstances. In my post, I’m using the term “cease & desist” broadly, to mean any kind of contact that tells them to take down the infringement.
Thanks for this article. I was at an art show and a man asked if he could take a photo of a painting. I said no, he asked if he could take a photo of my working palette, I said yes. Then I watched him and it looked like he aimed his camera at the painting until I went up to him. I have his business card so will watch his sight. Thanks for the guidelines of what to do if my painting turns up on his sight.
I love art though I’m no graphic artist. I appreciate a lot of artworks, a lot of then in the digital form, the ones we see on various corporate website designs, ecommerce web site designs, or even in social networking sites for social networking development. I myself incorporate some digital artworks, those that appeal to my taste, on my own corporate web design to make it more me. I would just like to add if that is already a violation on the intellectual property rights of the artists? Or am I just availing of the freedom to download those from the net?
You are already violating the artists’ copyrights by using their work this way without their permission. Legally, there is no freedom to download images from the net.
Excellent post! Thank you for the info!
Great Info. Recently had to write a cease & decease letter and the image was removed and the store closed down. An Etsy store owner had grabbed my image off the net (not sure if from my blog website or wherever) had removed my © line but didn’t see my signature hidden in the grass. And was trying to pass off as their own hand made watercolor and selling prints. Incidentally another artist had alerted me to this offending site otherwise as Im not an Etsy member I probably would never have found out about the theft. Another good reason for social networking. More eyes to help you mind your art.
I Also screamed foul via twitter FB and my blog until my image was removed but I have since read that could’ve backfired on me.
I absolutely love the theme of your web pages. I came across your blog on AltaVista. Did you design your website design and layout yourself? Wonderful work!