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What to do about copyright infringement - for artists

This section covers:
  • how to take action on stolen content / copyright infringement - all the steps + reference material
  • copyright infringement and court action - why people have to pay if they infringe copyright - and some examples of some cases concerning "appropriation" and famous artists
  • copyright infringement and content theft - some context in terms of informative articles and posts online

​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
​

The threshold for taking action is:
  • IF it is more likely than not that copying occurred 
  • ​IF the copying site is ranking higher than your site on Google
  • IF the site strips out any information that identifies the content as yours and/or misrepresents content as being theirs
  • AND if the artwork or other content which you think has infringed your copyright is substantially similar to your artwork.
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. 
Attorney Scot - You thought we wouldn't notice

WHAT TO DO if your artwork is stolen / plagiarised and your copyright infringed.
Notify the plagiariser (optional)
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. (i.e. the process below re contacting web hosts; domain name registrars etc). That generally does the trick.

Whether or not you notify the plagiariser is a judgement call. 

​​Beware of giving away an important email address. I use one used only for copyright notices.
REFERENCE:
  • Tips for repelling plagiarist bloggers tells you what I do when bloggers steal my content
  • SEOmoz | Four Ways to Enforce Your Copyright: What to Do When Your Online Content Is Being Stolen - One of the most common problems facing anyone who publishes content online is copyright infringement. It's happened to me. It's happened to you.
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
  • Do a Lookup using a Whois service to find out the details of the domain name registrar. Ideally you are looking to find out and make a note of the name of the person who registered the site, their email, their registrar, and the name of their host.
  • you also want to identify the contact email or URL for where to report copyright infringement to the domain name registrar
  • ​Bookmark a Whois site so you can use it - and make sure you use the relevant one for country specific domains
REFERENCE:
  • Whois - the world's top and most affordable online identity provider. Just insert the website address and it will generate the name and address of the registrar
  • ICANN WHOIS - this Lookup service gives you the ability to lookup any generic domains, such as "icann.org" to find out the registered domain holder (This is the one I typically use for most domain name extensions except country specific ones)
  • Nominet whois - Nominet is  the official registry for all .UK domain names. 
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This record of a "WhoIs" entry relates to the Case Study in the box further down this page. Note the email address for reporting copyright abuses to the domain name registrar
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This is the Networksolutions.com REPORT ABUSE FORM related to the above WhoIs enquiry. It's pretty standard and asks for the type of info you need to provide
NOTIFY RELEVANT 3RD PARTIES
- who can make a difference

All of the following assumes you are prepared to
  • notify third parties formally
  • AND create screen dumps and pdfs of the copied content
  • AND complete copyright infringement or complaint forms online.

These are people who can really make a difference if the website owner is ignoring you
  • notify Google (see below) and get the copied content removed from the index - make sure you use the right form. Removing Content From Google - Legal Help will help you get to the right place to report content that you would like removed from Google's services under applicable laws.  This might be your last course of action - however my experience is that this is an amazingly effective course of action when used in a communication which tells the infringer what you will do next
  • notify Google Blogger - if somebody is using Blogger to publish copyright infringements of your material you can pursue the matter with Blogger
  • notify the blog software company's site - they must have a way that you can notify them re. legal notices
  • notify the company hosting the website that they are hosting a copyright infringement. That then makes them legally liable as well and often prompts action - such as stopping the hosting of the website. If the hosting company chooses to kill the website - because the website breached its contract with them - the problem instantly goes away.
  • notify the domain name registrar that a website is infringing the terms of registration due to the copyright infringement. You need to issue a DMCA Takedown Notice and then they MUST take action otherwise they are also legally liable.
  • notify the advertisers e.g. Google AdSense - they're often a very good way of taking out a site which is copying you. Certainly most advertisers take a very dim view of their adverts being hosted on a site which you are going to notify Google needs to removed from Google's index.
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 
  • Google - What is copyright
  • Google - Legal Troubleshooter
  • Removing content from Google - re. Blogger

These are articles about what to do if somebody takes your content
  • What Do You Do When Someone Steals Your Content - Lorelle on WordPress provides very practical guidance on what to do when somebody steals your content
  • ​PB108: What To Do When Someone Steals Your Blog Content | Darren Rowse Problogger - includes a podcast which explains what to do (which can also be downloaded). Discusses what to do and whether it is worth doing anything



Anybody who thinks Google never ever does anything about infringement of copyright might like to read this TRANSPARENCY REPORT from Google

Below the image summarises the 4,598,999,356 URLs which were identified to be delisted!
If you've been affected by Copyright Infringement, ask yourself DID YOU REPORT IT TO GOOGLE?
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From the Google Transparency Report - re requests to delist URLs
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
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.
  • Shame the suckers! – If all else fails, and they are especially egregious. Name and shame is an effective way to deal with them. Highlighting their activities is the first step in getting the site removed. Darren Rowse | Problogger
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.
REFERENCE:
  • Chilling Effects Clearinghouse - The Chilling Effects database collects and analyzes legal complaints and requests for removal of online materials, helping Internet users to know their rights and understand the law.
  • You Thought We Wouldn't Notice… but we did… - A blog which is dedicated to pointing out those things that give you that feeling of haven’t I seen that somewhere before?”
  • Making a Mark: Art competitions and copyright - the AWS Gold Medal debate - This is a lengthy post highlighting issues relating to the use of reference photographs for artwork and is of relevance to art societies which have to deal with disputes about copyright and artists who enter art competitions. It also records the viral response to an alleged infringement.
LEGAL ACTION
Recover any financial losses

This can be expensive and, in general, you don't want to go there. There's a lot that can be done before you need to think about employing a lawyer.

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
REFERENCE:
  • EPUK - Stolen photographs: what to do? - Your copyright, what you are entitled to claim from an infringer, and how to assemble and present a claim, are all discussed in detail
  • Intellectual Property Protection - Recover losses due to infringement of a photographer's work
  • ImageRights - ImageRights Get Paid for Your Work It's your image. You shot it. You created it. You own it. Now get paid for it.
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.
REFERENCE
  • How Banksy retains control - when you're an artist who cannot be identified, how do you maintain control of those seeking to counterfeit your art? Note this mainly relates to trademark rather than copyright infringement.
CASE STUDY: A successful outcome

​Is your artwork on the "National Wildlife & Nature Gallery" website? is about a scam website which was taken down successfully in a few hours.

The website was identified by Harriet Mead, President of the Society of Wildlife Artists as containing images of her own artwork and those of other artists she knew. 

Together we followed a basic form of the approach I advocate above (you can read about it in the blog post) and four hours after we started, the site was taken down and the Twitter account was deleted.

It's helpful if you can have people dedicated to different tasks
  • Harriet worked out who the artists were and contacted as many as she could
  • I did the technical end - finding/sharing the abuse forms and writing the blog post to highlight the problem website and how to report abuse
  • the artists filed abuse reports
Even if the owner had not taken it down, the web host or domain registrar would have pulled the plug - which is why this is a highly effective way of resolving scams.
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Part of the Home Page
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Received four hours after my first email to the owner

LEARNING POINTS
  • You do NOT need a lawyer to get a website taken down or your artwork removed
  • Follow the process (see above)
  • It helps a lot if you are plugged into a network of artists whose copyright has also been infringed - and wildlife/animal/equine artists are very effective at networking!

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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.
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).
Wikipedia 
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
Tate Definition
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
REFERENCE:
  • ​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

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!
REFERENCE:
  • Richard Prince v Suicide Girls in an Instagram price war ​ | The Guardian (2015) - Founder Missy Suicide offers prints of Instagram posts for $90 after discovering versions by Richard Prince for sale at Frieze art fair for $90,000
  • Instagram, an artist and the $100,000 selfies – appropriation in the digital age | The Guardian (2015) - Richard Prince has turned borrowing online images into high art – and hard cash. But is the artist’s work anything other than genius trolling?​
  • Controversial artist Richard Prince sued for copyright infringement | The Guardian (2016) - The artist, whose work often involves appropriating the images of others, has been sued for his use of the photograph Rastafarian Smoking a Joint]
  • Artist Richard Prince Has Cut Ties with Gagosian Gallery | artnet news (2016) - Prince has frequently sparked controversy over his appropriation practice, including a string of copyright lawsuits in which Larry Gagosian personally, and the Gagosian Gallery business, have been drawn in to as defendants.
  • Richard Prince defends reuse of others’ photographs | The Art Newspaper (2018) - In court motions, he argues that his appropriation explores the virtual world of social media
  • Richard Prince: Thief, Appropriation Artist, Or Performance Artist? | Above the Law (2018) - Not surprisingly, he’s now embroiled in another copyright infringement suit again involving appropriation art.
  • Richard Prince is fighting appropriation accusations leveled in a lawsuit over his Instagram portraits. | Artsy (2018)
  • ‘Appropriation Art’ or ‘Revenge Porn’? The Subject of a Richard Prince Instagram Portrait Slams the Artist’s Use of Her Image | ArtNet (2019) - Zoë Ligon says she feels "violated" by the use of her image without her consent.
  • Cariou vs Prince | Wikipedia - summary of a copyright on the question of whether artist Richard Prince's appropriation art treatment of Patrick Cariou's photographs was a copyright infringement or a fair use. 
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

Jeff Koons is an appropriation artist and has been repeatedly cited in copyright infringements cases - and LOST.
REFERENCE:
  • Jeff Koons sued for appropriating 1980s gin ad in art work sold for millions | The Guardian (2015) - The artist is being sued by a photographer who claims that Koons’s 1986 work I Could Go For Something Gordon’s used his photograph without permission
  • Legalities 30: Jeff Koons and Copyright Infringement | Owen, Wickersham & Erickson, P.C  - Mr. Koons has been sued several times for copyright infringement. Here are some lessons to be gleaned from some of those litigations 
  • Rogers v. Koons | Wikipedia Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), is a leading U.S. court case on copyright, dealing with the fair use defense for parody.
  • Jeff Koons and Centre Pompidou Lose Copyright Infringement Case | Art Net News (March 2017) This is not the first time Koons has been sued and lost.
  • French Court Finds Jeff Koons Appropriated Copyrighted Photograph That “Saved Him Creative Work” | Trademark and Copyright Law (Published by Foley Hoag LLP)
  • Jeff Koons Sued Yet Again Over Copyright Infringement | Art Net news - The auction house Phillips has also been sued as part of the same case.
  • Jeff Koons Is Found Guilty of Copying. Again. | New York Times  (2018) - A French court found that Mr. Koons’s 1988 sculpture “Fait d’hiver” breached the copyright of the creator of a 1985 advertising campaign.
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.
​Rogers v. Koons | Wikipedia
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.
French Court Finds Jeff Koons Appropriated Copyrighted Photograph That “Saved Him Creative Work” 

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
​

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. 
Plagiarise at your peril - the Luc Tuymans case
Copyright and plagiarism in general
  • Dear Rich: Nolo's Intellectual Property Blog - The Dear Rich staff provides easy-to-understand answers to questions about copyright, trademarks and patents (and related law).
  • PlagiarismToday - An excellent blog by somebody who is not a lawyer but rather a legally-minded Webmaster/Writer frustrated with the plague of plagiarism online and doing something about it.
  • Why Your Copyright Protection is Second Rate - PlagiarismToday - the entire copyright system in the United States is tilted to favor big copyright.....This system ensures that individuals have almost no protection of their works while corporations are free to sue for massive amounts of money. 
Copyright Infringement: Artwork
  • Copyright Infringement, Reproduction Rights and Artists' Careers | Artbusiness.com - While it's true that art used in unauthorized ways is usually an infringement on the artist's copyright, the question then becomes whether or not to do anything about it - legal or otherwise - and if so, what?
  • Why Copyright Infringement is Hard to Prove for Artists | Art Law Journal -
  • Artwork Infringement: Steps to Protecting Your Rights | Graphic Artists Guild - What should be your first step when you have discovered someone has infringed on your artwork?
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.
Website Practices which cause concern
  • Artists Express Concern Over PhotoBucket - Plagiarism Today - PhotoBucket, the Web's largest image sharing service, has been drawing criticism from a growing number of artists over its practices regarding copyrighted material. At issue specifically are two elements of PhotoBucket's services. 
Websites with better practices
  • Why Wordpress.com is Virtually Spam Free - PlagiarismToday - It seems as if nearly every major free blog hosting service has been either overrun or nearly overrun with spam. However, one services stands alone, a relative oasis of spam cleanliness, Automattic's Wordpress.com.

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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GO TO SITE INDEX

​GO TO COPYRIGHT - Introduction
  • Copyright and artists' rights
  • Copyright infringement and fair use - for artists 
  • How to protect artwork online
  • How to do a reverse image search 
  • What to do about copyright infringement - for artists 
  • Global Conventions on Copyright
  • Copyright in the UK
  • Copyright in the USA
  • Copyright in Australia
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ABOUT ART BUSINESS INFO. FOR ARTISTS
This website aims to provide a compendium of resources about the art business for artists. Please read "PLEASE NOTE"

It helps artists learn how to do better at being business-like, marketing and selling their art and looking after their financial security.
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PLEASE NOTE:
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​2) I research topics carefully. However, I am totally unable to warrant that 
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  • MONEY & TAX
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