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This section covers:
Note: I'm not a lawyer and you should not rely on any assertions I make as legal advice. I'm just an ordinary artist and writer who is trying to make sense of copyright in relation to visual art - and what artists can do if their copyright is infringed and/or others act in such a way as to create orphan works from their copyright protected artwork. These pages organises links to what seem to me to be relevant websites. If you need the help of a lawyer you should engage a professional. |
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Take action on stolen content
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The threshold for taking action is:
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For a copyright case to be valid, the infringer has to have taken a material amount of expression. While this varies from case to case, it is not negligible or de minimis. |
What to do if your artwork is stolen / plagiarised and your copyright infringed.
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Notify the plagiariser
You can contact the blogger,webmaster and serve a takedown notice i.e. explain they are in breach of copyright - and ask them to remove the content immediately (or within a specific time period eg 24 or 48 hours). If I contact somebody who I think has plagiarised in error I tell them what happens next i.e. after 24 hours of my email being sent. That generally does the trick. Whether or not you notify the plagiariser is a judgement call. Many copy in order to make contact with you. Beware of giving away an important email address. I use one used only for copyright notices. |
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Use Whois to find out contact details
If you want to contact third parties you need to have a way of finding out who they are and what their contact details are
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NOTIFY RELEVANT 3RD PARTIES
- who can make a difference All of the following assumes you are prepared to
These are people who can really make a difference if the website owner is ignoring you
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It is Google's policy to comply with notices of copyright infringement pursuant to the Digital Millenium Copyright Act. To read more about our copyright policies and the requirements of a complete notice, please visit our Copyright Help Center. REFERENCE:
Below are links to specific sites on Google which enable you to progress These are articles about what to do if somebody takes your content
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SUBMIT A COPYRIGHT INFRINGEMENT NOTICE
- Google states "Copyright violations: if you have found content violating your copyright, you can submit a DMCA takedown request."
- Google - Block content from Search (eg copyright infringements of your work - good for situations where it's impossible to contact the thief)
- Google Copyright Removal Dashboard - shows status of DMCA notices you've served on Google
- Google: If the copyright infringement appears on a Google property Report alleged copyright infringement: Google Photos, Google+ Photos and Picasa Web Albums
- YouTube: Submit a copyright takedown notice
- Instagram: Copyright Report form
- Tumblr: DMCA Copyright Notifications
- Pinterest: Copyright Complaint Form
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NAME AND SHAME
If the person is well known and taking your content - and has done nothing about it, you might want to call them out publicly on it. A number of artists' groups have a particularly effective way of calling out individuals via Facebook where they basically swarm and comment constantly until the content is removed. |
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PUBLICISE THE INFRINGEMENT
Notify people who will record the infringement Highlighting wrong-doing (if you are sure that this is what it is) on the Internet can be very effective, especially if it goes viral. The references can linger long. Sometimes the most effective thing to do is to highlight what has happened on a third party website - such as the Chilling Effects Clearinghouse. Sometimes people will record what has happened even if you don't ask them to. It's always important to use the word alleged if you are unclear of the facts and want to write about a case of alleged infringement. |
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LEGAL ACTION
Recover any financial losses This can be expensive and, in general, you don't want to go there. Sometimes it can be better to write off a copyright infringement to experience - and then take action to make sure it doesn't happen again. However if somebody is making money off your artwork you can seek recovery of all income made and punitive damages and recover your legal expenses |
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CHANGE YOUR PRACTICE
Take action to retain control of your images This can be relatively simple (eg watermarking images) or you can invent an entire structure to prove that your property rights are being infringed. Banksy came up with a brilliant way of proving whether or not a piece is created by him - his Instagram is the only place he publishes his creations. Plus he and his advisers have devised a legal structure to take counterfeiters to court for infringing his trademark. |
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Copyright Infringement and the Courts
Copyright infringement - why Courts make people pay | Making A Mark - If you infringe copyright you can be liable for financial damages relating to:
- the financial benefit you derived through the use of the images;
- the financial benefit lost by the copyright owners (e.g. licensing fees) and
- a penalty for the abuse of copyright
Appropriation of Art: Famous Case Studies
Below are various definitions of appropriation in the context of art.
It's important to remember that the fact that it happens does not make it legitimate in terms of the law - as several contemporary artists have found to their cost.
It's important to remember that the fact that it happens does not make it legitimate in terms of the law - as several contemporary artists have found to their cost.
Appropriation in art is the use of pre-existing objects or images with little or no transformation applied to them. The use of appropriation has played a significant role in the history of the arts (literary, visual, musical and performing arts). |
Appropriation in art and art history refers to the practice of artists using pre-existing objects or images in their art with little transformation of the original |
Appropriation is the intentional borrowing, copying, and alteration of preexisting images and objects. It is a strategy that has been used by artists for millennia, but took on new significance in mid-20th-century America and Britain with the rise of consumerism and the proliferation of popular images through mass media outlets from magazines to television.
Museum of Modern Art, New York
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- Appropriation (art) | Wikipedia
- Appropriation | Tate Glossary
- Appropriation | MoMA - a theme of Pop Art
- Copyright infringement - recent lawsuits involving artists | Making A Mark - I keep track and make a record of high profile court cases involving eg Jeff Koons, Richard Prince et al
Richard Prince
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Richard Prince has been involved in a number of high profile legal cases related to his appropriation of images by other artists - over a period of YEARS!
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Cariou v. Prince, a case decided in 2013, involved photographs of the Rastafarian community in Jamaica taken by Patrick Cariou and published in the book, Yes Rasta. Prince then created his own series based on photographs from the book. Prince added pops of color or other images to the original, blurred some photos, created composites, and otherwise added content or changed the photograph. Although the district court ruled against Prince’s argument that he was engaging in fair use, the Second Circuit found the works to be transformative because Prince was commenting on the original work through his appropriation. Whether one believes that Prince’s actions in Cariou constituted fair use, it’s indisputable that Prince did add and change the photograph, sometimes significantly.
In current litigation against Prince, it’s less clear that significant changes or additions have been made.
Above the Law 18 October 2018
In 2014, Mr. Prince presented an installation called “New Portraits” at the Gagosian Gallery, in which he printed various Instagram photos on large canvases, and added his own Instagram-style comments below them. New York Times 20 July 2017 |
The court will also consider how Prince’s works affect the photographs’ market and value. Prince argues the effect will not be negative because he and the photographers appeal to different buyers. The Art Newspaper 10 October 2018 |
Jeff Koons
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Jeff Koons is an appropriation artist and has been repeatedly cited in copyright infringements cases - and LOST.
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An artist who reproduced a photograph as a three-dimensional sculpture for sale as high-priced art could not claim parody as a defense for copyright infringement, when the photograph itself was not the target of his parody. |
The Paris District Court’s decision illustrates some of the specificities of French copyright law, and demonstrates the recent influence of the European Court of Human Rights (“ECHR”) on IP matters. |
Luc Tuymans
- Plagiarise at your peril - the Luc Tuymans case | Making A Mark (2015) - Luc Tuymans (a famous artist) was found guilty of plagiarism by a Belgian Court. The court's decision calls into question a considerable body of work created from an unlicensed use of a photograph by Tuymans and others.
- Belgian Artist’s Painting Infringes Upon Photographer’s Work, Court Rules | New York Times (2015) - The Belgian artist Luc Tuymans’s painting of a sweating politician infringes on a news photo of the politician Jean-Marie Dedecker, a court ruled.
Andy Warhol and Robert Rauschenberg
- Richard Prince Wasn’t the First Artist to Face Copyright Battles—Just Ask Warhol and Rauschenberg | Artsy - reviews that experiences of Andy Warhol and Robert Rauschenberg, two of the first artists who, in the 1960s and 1970s, faced legal action for appropriating others’ photography.
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Copyright Infringement and Content Theft
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A variety of bloggers and others have provided useful posts about copyright and how to handle copyright theft.
Below are a number of useful posts categorised by their main topic of interest. Do please let me know if you find any good new posts to add to this list! |
freedom of expression is very much skin to freedom of speech. Both are absolutely NOT "absolute" - both are hedged in by a number of conventions expressed in law. |
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Copyright and plagiarism in general
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Copyright Infringement: Artwork
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Content theft: Hijacking, Spam and Splogs
- The Growing Trends in Content Theft: Image Theft, Feed Scraping, and Website Hijacking - Lorelle writes: Stealing content directly off your site or blog and posting it on another blog, or even in magazine, is the most common method of content theft.
- Website Hammered by Hotlinking, Spammers, and Free Loaders? - Lorelle writes: My main site recently was hammered by Hotlinking, Spammers, and Free Loaders. This can happen to any website, so we all need to learn how to keep an eye on potential abuse of our sites.
- How to Complain and Report Spam Blogger Blogs - There are hundreds of spam blogs (also called Splogs) in the blogosphere. Most of these are created on the feature rich and free blogging platform Blogger offered by Google.
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Website Practices which cause concern
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Websites with better practices
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What to do if you are accused of copyright infringement
It's Your Work: Prove It | The Blog Herald - What to do when a website accuses you of infringing copyright because somebody else has uploaded your work to their site. It also discusses non-repudiation services
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