© Copyright Characters Engage Ltd, 2011-2012. All Rights Reserved. Materials used by consent of the copyright holders or their representatives.
"Characters are influential. Most of us have been influenced by a character in one way or another"
Character topic: International Online Art Theft
In this issue:
According to the UK’s Guardian newspaper, art theft ranks “third as the highest grossing criminal business in the world after drugs and weapons” at a value of over $6 billion (USD). However the context of this declaration focuses on the theft of physical fine art and leaves a significant portion of art theft out... art and artistic images that are stolen online. This issue is so underground that, as I researched this article, I could find no statistics that related to online art theft only. But those of us who create and work in the online arena know it’s happening, because more likely than not we’ve been a victim of this crime, or know someone who has. So what can be done? What can you do?
Step 1: Know Your Rights
As an artist it is important to know and understand the different laws that protect your art work in your home country as well as in the countries where your work may be displayed or sold. Most countries will have a “Copyright Office” where works can be registered for official protection, as well as organizations that educate artists about their rights. A few examples are listed below.
It is also important to know that copyrights are not international rights per se. Although there are treaties and agreements (Berne Convention, WIPO) to recognize country-specific rights, many have had to register their work in a number of countries for full protection.
US Copyright Office
Canadian Copyright Office
World Intellectual Property Organization
Step 2: Have a Protection Plan
Monitoring: How will you know if your work was stolen? Do you have a mechanism for periodical checks? Most countries require the copyright owner to be diligent about monitoring for illegal use of their work and to enforce their rights. I have clients who have set up a Google® Alert with their name and specific keywords that identify their art work. Some of them also conduct a monthly search engine query. Done consistently such actions are good evidence of your commitment to protect your rights.
Discouragement: Watermarks or low resolution thumbnails that don’t expand are strategies that artists have used. Consider in addition, not to put certain art works out there and if you do, password protection for insider sites can be useful. Also, put a copyright © notice on your work. Despite the fact that it is not required in the US, it does serve as a reminder to others.
Registration: Registration requires a fee, which means that it can become a financial decision. I usually ask my clients if they have a signature piece that represents the message in their work. Register this one piece and use it for promotion. Registration is important and so is its timing. In the US you MUST register within 3 months of publication (making it public), or you lose statutory damages rights, which can include attorney fees.
Step 3: Gather the Facts
If something does happen, take a deep breath and gather the facts. What was stolen, and how do you know it was stolen? When was it taken? A chronology that lays out the events from your creation of the art to the discovery of the theft is an important piece for any recoupment. Is there any information to identify the person who stole it? Did they have any legitimate reason to use your art? For example, in the US we have fair use exceptions for scholarly work. Document in writing all the information you gather about the incident.
Step 4: Letters and Notices
The Cease and Desist letter is to put the person or website on notice that you are the copyright owner, that they are infringing your rights and that they need to stop or you will take any action necessary. Such action may include litigation, to have them stop and to pay you compensation for their unauthorized use of your work, as provided for under the laws of your country.
In the US we have the Digital Millennium Copyright Act (DMCA) which allows a copyright owner to send a “take-down” notice to the ISP of the website to take down the infringing material. Some sites have this process automated (like YouTube, http://www.youtube.com/t/dmca_policy). The ISP will send a notice of your motion to the “infringing account”.
Step 5: Advocates
Due to the borderless nature of the internet, these thefts often happen across international borders. General consulates and national embassies are some of the less well known and rarely used resources available in such cases. Most of these have a cultural attaché or other department focused on art and cultural issues. They will be able to point you in the right direction regarding their intellectual property protection laws.
You can also consider listing your “theft” with some international art theft directories. Although they usually focus on physical fine art, they may take a closer look at what is happening online if they keep receiving inquiries from artists whose works have been stolen online.
FBI – Stolen Art File
Art Loss Register
International Foundation for Art Research
Step 6: Tweet and Shout: Get the Word Out!
Today artists have a tool that they did not have before. Social media allow for the dissemination of wrong doing faster and farther reaching than ever before. In the art world, being associated with creative theft is not in your best interest. Many artists have been compensated for stolen work soon after a tweet or a video has gone viral. However, make sure you have all your facts correct, as making a false accusation can lead you into the troubled waters of a defamation (libel) lawsuit with the one who stole from you!
Step 7: Decision Day
Go to court: I always consider this to be a last resort, as it puts your life and career on hold and can have other devastating effects. If the money value isn’t there, it can also be of very little benefit. Be careful about pursuing a lawsuit just on principle. It costs money, especially if you want an excellent attorney (expensive but worth it), and it can take years before you get a resolution. Add in an international factor and you are in deeper pockets and longer stays.
Chalk it up: This is a hard one. To accept that you have been robbed is difficult enough. To accept that there is nothing you can do about it is even harder. But sometimes, after you sent the letter, the DMCA notice, get the word out and do the profit and loss analysis of filing a lawsuit you may find yourself having to let it go. Reflect on the incident and review any lessons learned. What should you not do in the future? What do you need to do now?
Art theft is a personal crime, not just a property crime. It takes away some of the essence of you as an artist, your creative process, your creative decisions, your creative efforts. It isn’t legal, but more importantly it isn’t right. Become an advocate for other artists, talk about this issue, spread the word when something comes up, be part of the discussion, but please don’t stop creating. Don’t let them steal the most important asset you have... your talent.
Circular from US Copyright Office: Intl. Copyright Relations
Online Art Theft – What to Do About It
Illustrators Unite to Protest Online Art Theft
What to Do When Your Art Work is Used Without Permission
Deborah Gonzalez, Esq. is an attorney focusing on intellectual property in the art, music, and entertainment industries. To learn more about her practice and for more resources for artists check out her website at http://www.dgonzalezesq.com/.
by: Deborah Gonzalez, Esq.