The Internet has done phenomenal things for the digital art world, but it has also given rise to a huge new wave of art plagiarism. It is now easier to steal work than it has ever been before, but it’s easier to get caught, too. In this age of quick copies and mass exposure, your best course of action as an artist is to know your rights.
First, the basics: in the UK and most other parts of the world, you automatically hold copyright in your original works of art. You do not need to get approval from the Intellectual Property Office in order to protect your work unless you are filing a lawsuit. The copyright owner has the right to prevent others from copying the work, issuing copies, renting or lending the work, and/or showing the work to the public. In the UK, copyright protection usually lasts for up to 70 years from the date of the death of the creator of the work.
How can you protect your work from being plagiarised?
From a preventative standpoint, the are many practical steps you can take right now in order to make sure your work stays safe. It’s natural to want to display your portfolio on your website or Facebook page, but it is important to be smart about it, according to Matthew Shearer, the Association of Illustrators Membership Manager, who advises members on pricing, ethics, contracts, copyright and so on.
Anything you upload to any website should be set to 72dpi. This file size will look fine on the web, but it won’t be stored as a big enough file to be used in any substantial way for tracing or other plagiarism methods. Even if someone were to pull the image off the website, it wouldn’t be of a high enough quality for any kind of print or commercial use, Matthew said in an interview with Digital Arts.
Also, “© [Your Name] 2014” should be visible on every web page, Matthew said. Ideally, this phrase should be in the header and footer of your website on every single page. Cover the bases on social media as well: put your copyright in your “about” page on Facebook, in your Twitter bio, and so on. If you want to put a piece of work on Tumblr or Pinterest, a watermark is recommended in order to make sure the source (you) stays attached to the image.
Although there are no fail-safe ways to make sure no one tries to steal your work besides never showing it to anyone, one clever method artist Kate Moross has employed to ward off copiers is to subtly work her name into many of her designs (below) “so if it is reprinted I can laugh at the lazy thief,” she wrote in her book Make Your Own Luck.
Increasing the circulation of your work – via Facebook, blogs, or magazine prints, for example – does not legally erode your copyrights. While this of course gives your work more exposure and therefore more opportunity to be ripped off, it can also serve as a protection in case you ever need to prove that you created a piece of art when you say you did – just look at the timestamp on the Facebook upload, for example.
What's the difference between influence and plagiarism?
Just because someone had the same idea as you does not necessarily mean it is copyright infringement. Plagiarism is illegal; influence and coincidence are not.
“There is no copyright in an idea or style. There’s only copyright in the composition of an image – how it’s laid out, the way it’s drawn and the way it’s designed,” Matthew said. (This is also an important thing to keep in mind if you yourself are accused of infringing another artist’s copyright.)
If someone’s work looks like your work but isn’t an exact copy, there’s not much you can do about it. Even if you are sure they referenced your work in some capacity, that is easily disputable.
However, “a small but still key part of the work can still be a substantial part of the work,” Matthew pointed out. “There is no set percentage amount that can be referenced or can be copied for something to be a new work and not infringe copyright,” he said, but rather it is up to the discretion of the judge.
What should you do if you discover your work has been copied?
Whether it’s a fellow Etsy artist ripping off your work or a major corporation doing it, the first step to take is almost always the same: send a cease and desist letter to the infringer. A cease and desist is a fierce letter or email informing the receiver that they are in breach of your copyright and suggesting that they remove the item from their portfolio or store and destroy all copies. This is often an effective scare tactic and a relatively painless way of dealing with copyright infringement issues – no lawyers, no trial, no drama.
In many cases, though, you may feel that drama is indeed due. Depending on how you look at it, simply asking an infringer to delete the work and pretend it never happened could be seen as letting them off the hook for a truly malicious act. In that case, one option is to contact the artist directly and, in non-legal terms, tell them that you know what’s going on and that what they are doing is wrong.
Kate advises you to “be headstrong and ballsy” in your confrontations, but also do it with love.
“In most cases, the person that is copying you will be a BIG fan, so be gentle. It would be sad to turn your biggest fan against you,” Kate wrote. “It’s most likely that they will take note of your comments and try to come up with some new styles of their own.”
However, confrontations do not always go that smoothly. Illustrator Rod Hunt personally found this out when he discovered a design student had blatantly copied his book cover illustration of Change the World 9 to 5 (below) and was promoting it as his own original work. When Rod confronted the student, he seemed oblivious to the fact that his plagiarism could even be an issue.
“I basically gave him a very matter-of-fact education about plagiarism and copyright infringement… and he came back and said: ‘Oh, I quite often take found compositions and create work from it,’” Rod told Digital Arts in an interview. “And it’s like, haven’t they taught you anything at art college about copyright and art plagiarism?”
In fact, some schools inadvertently let students know that the opposite is okay. Copying artistic work in order to learn illustrative techniques is an important and virtually unavoidable part of the art education process and has been going on for decades. But the distinguishing line between legal and illegal seems fairly obvious: You can attempt to replicate Van Gogh’s “Café Terrace at Night” as part of an educational class assignment, but you cannot put it in your portfolio and try to pass it off as your own original work (especially when copying lesser-known artists). But in practice the lines are blurrier: what’s the provable difference between inspiration and plagiarism? Either ignorantly or maliciously, some students cross that line and plagiarise work regularly.
Students are obviously not exempt from copyright infringement laws and can find themselves in a lot trouble. In 2009, a Falmouth University graduate student was caught plagiarising dozens of pieces line for line from artist Lauren Nassef. The student won the Texprint award in 2009 for this stolen work with a cash prize of £750 and the opportunity to exhibit at two trade shows in Hong Kong and Paris where she could take orders for the stolen designs. Once she was outed as a fraud, the student took down her website and had her award and exhibitions revoked. Though the issue apparently never went to court, the student was heavily shamed on the Internet via sites like You Thought We Wouldn’t Notice and other artists’ blogs. The image below, showing Lauren's drawings on the left and the infringer's pattern on the right, was taken from Book by its Cover.
Online bashing – should you publicly call someone out for stealing your work?
Though online shaming may seem like a satisfying route to take, it is basically universally advised against when it comes to commercial copyright disputes because you don’t want to point fingers at the wrong party. The worst thing you could do, according to Rod, is to “get on the Internet and tweet about it and tell everyone how you’ve been ripped off,” he said. “Blaming a massive company for ripping you off should not be your initial response because they may not necessarily be the people who are at fault.”
Kate echoed similar sentiments in her book, noting that the commissioned artists are usually the ones at fault for plagiarism.
“Sometimes big corporations hire people for not enough money and expect them to come up with lots of ideas,” she wrote in her book. “This means that these people will copy and steal to meet deadlines… Believe it or not, lots of T-shirt companies ‘get’ their designs by doing Google image searches.”
However, sometimes when an artist is up against a major high-street chain – companies with teams of expensive lawyers and deep pockets to either take you down or keep you quiet – online shaming might be a good initial route to give your situation some exposure.
“Any large company will be embarrassed that their employees are infringing the copyright of other people, so making light of the fact in the media is a good start,” Kate wrote. (But watch out – you yourself could be slapped with a libel lawsuit if the allegations are unfounded.)
Are lawsuits even worth it?
If you do decide to go the legal route, be prepared to prove it. Line up your work in Photoshop with the infringing material to prove that the pieces are the same. Bring proof of when you created the art, such as progress pictures you took with your camera or uploaded onto social media. When going against a big company, the payoff could be good because they potentially will have made a lot of money off of your design.
However, you absolutely must weigh the slight possibility of a big payoff against the downsides of emotional and financial turmoil in the meantime – or permanently, if you lose the case. Lawsuits are definitely not the right path for everyone and it would not be wise to let yourself go bankrupt over a minor dispute. The financial burden of a copyright lawsuit can really drain everything you have, as Seattle-based design company Modern Dog has realised over the past few years. The company had to sell a house in order to fund a lawsuit against Disney and Target for breaching copyright law with a T-shirt. See the video below for side-by-side comparisons.
The suit alleges that Disney and Target took the endpapers of the book Modern Dog: 20 Years of Poster Art and used 26 of the dog illustrations on apparel sold and distributed as part of a marketing campaign for the movie Sharpay’s Fabulous Adventure. (Seattle Copyright Watch has a thorough rundown of the initial complaint filed on October 31, 2011.)
“Initially we wanted to set the record straight, as we naively thought our case would be settled in a few weeks,” Modern Dog co-founder Robynne Raye told Print Mag in December 2012. “But copyright enforcement doesn’t work like that; in fact, it is very difficult for an individual or small company to litigate, due to the costs and time associated with a lawsuit. Unfortunately, what happens is that most creators just let it go, and I can understand why. In the end, it seems that the only entities that benefit by copyright are the large corporations that can afford to litigate.”
The studio was able to raise over $40,000 to go toward its growing legal fees via a crowdsourcing campaign, but even that amount of money in no way covered all of its expenses. (After a three-year court battle, Modern Dog and the defendants reached a settlement in January 2014.) If that is not a battle you are willing to take on, as painful as it might be, it is probably best just to let it go and somehow try to view the copying as a compliment.
On a smaller scale, even minor disputes can run you dry in court.
“If 700 T-shirts were printed with your design on them, say, you would only be entitled to a small percentage of the cost price of each shirt,” Kate wrote, “so it’s conceivable that a settlement payment could actually work out as being less than a lawyer would cost you.” A good lawyer will tell you honestly whether their fee would be more than the potential settlement.
An alternative to legal advice on these matters is to go to the AOI to ask for copyright advice. (Rod served as Chairman of the AOI from August 2009 to March 2012.) They can give an expert opinion on whether a piece of work is infringing copyright or not, advise you on how to approach the company, and recommend whether or not to pursue the issue beyond a cease and desist letter.
“[Some copyright lawyers cost] £200 an hour,” Rod said. “Meanwhile, your membership for the AOI is £150 a year for unlimited free advice."
Design plagiarism is a complicated legal matter and can be an emotionally disheartening and a financially devastating experience. Knowing your rights is an important first step of protecting your artistic endeavors and making sure you always get credit where credit is due.