Picture it. You’ve spent weeks on an illustration you’re proud of, shared it with your followers online and even started selling it on Etsy. Then you receive a DM from a concerned follower, saying a high street chain has used your illustration on their t-shirts. It’s beyond galling, it’s a violation no artist should face.
But it keeps happening, time and again, with illustrators feeling powerless to challenge the large organisations that refuse to credit them. ‘Whether it’s true copyright infringement or just very heavy borrowing, art theft and plagiarism play a recurring role for many in creative industries,’ explains Adam J. Kurtz, founder of Shop Art Theft, to the Illustrators’ Lounge.
‘In my own experience, I’ve been deliberately ripped off by all sorts – major retail brands, other artists, even my own clients. I don’t accept it, but I’ve come to expect it.’
Whether work is stolen intentionally or obliviously, Kurtz describes a disregard for crediting sources, especially in an era where global memes and pins are shared voraciously. There is a collective sense that content on the internet is somehow ‘ownerless’.
‘I think some people feel that it’s easy to steal from artists and easy to get away with it. So they help themselves and then deal with the repercussions later,’ Kurtz adds.
In response, he set up Shop Art Theft to raise awareness of the issue and to hold companies to account when work is thought to have been replicated. Artists and fans can also ‘support independent artists by purchasing work that has been allegedly stolen by major retailers.’
What are your rights if work is copied?
Beyond the financial loss, it’s demoralising for artists to share work online that is at risk of being stolen. Fighting back legally can be expensive and is complicated by where you’re based and where the violation takes place.
‘Fair use’ in the US is a defence that can be levelled by companies when work is used without permission. From photography to illustration, with this argument they can state that original work has somehow been transformed into something new through parody.
Outlining how copyright laws work in the UK, Enrico Bonadio, senior lecturer in Law, City University London tells the Illustrators’ Lounge:
‘In the UK, in addition to economic rights artists also enjoy moral rights. There are two parts to this – right of paternity (the right to be recognised as the author); and the right of integrity (to oppose modification of work prejudicial to owner of the work/author). This gives the artist a right to control how their work is used or misused.’
‘The treatment must be prejudicial to the reputation of the artist, similar to defamation. The moral rights of the artist are protected in Europe. If copying happens over the internet you’d have to establish jurisdiction in UK and prejudicial consequences in the UK. You have to establish the connection,’ he adds.
How to protect your work from copyright infringement
Legal experts advise artists to be proactive and preemptive about protecting their copyright before there is an infringement.
Bonadio suggests: ‘The main tool that could be used to try to protect your work is to insert a copyright symbol next to it. This gives notice to third parties informing them that the work is protected. Even without the symbol the work is protected but the presence of the symbol strengthens the rights of the artist. It gives visibility that protects the work.
‘When work is copied digitally or on a website it is a violation of rights. The copyright owner or artist has a right to protect or prevent others from distributing any object. It targets commercial and non-commercial acts, providing it’s not fair dealing.’
If you’re a US-based creative, Steven Schlackman an IP attorney at Schlackman IP Law and VP Product Innovation at Orangenius tells the Illustrators’ Lounge: ‘ There are few ways to keep creative works from being appropriated in the “sharing economy […] Most strategies focus on receiving proper compensation after an infringement is discovered rather than keeping works from being used without permission.’
‘I suggest a two-pronged approach. First, registering your works with the U.S. Copyright Office prior to an infringement entitles you to statutory damages, which don’t require the artist to prove losses. That makes litigation much easier. More importantly, the copyright holder can receive reasonable legal fees too, so the artist won’t pay a lawyer more than he or she receives from the lawsuit. The second prong is tracking. You can sign up for services, like imagerights.com, that will scour the web for your images and alert you when a potential infringement is discovered,’ he suggests.
After this, it’s time to find out if the allegedly stolen work does qualify as a copy. You’ll need to ask a lawyer to draft a cease and desist letter on your behalf, asking the company to remove the work within a set time period. If you receive no response, again a lawyer can assess the cost of further litigation and how you’ll prove financial loss. It’s only after this that you might sue for statutory damages.
Sadly, it’s impossible for creatives to stop their artwork from being unwittingly copied but if you preemptively copyright it you’ll stand a better chance of protecting it should an infringement take place. Depending on whether you’re in the UK or US, laws around copyright differ so you’ll need to invest in sometimes costly, legal advice if you’re the victim of stolen art.
Kurtz concludes: ‘Sometimes a little public shaming makes the difference in a brand responding at all, other times it’s at least an opportunity to start a conversation that increases awareness of the problem.
‘Ultimately there’s no perfect solution, and these things will keep happening. But it’s been encouraging to feel supported by my own community when I do publicly voice these frustrations, and it keeps me motivated to go on making new things.’