As the owner of Xanadu Gallery, I often come across stories of artists facing challenges in their creative journeys. We represent one such artist at Xanadu Gallery, Elisabeth Ladwig, whose experience with copyright infringement has been both frustrating and inspiring. Today, I want to share her story and the lessons we can learn from her tenacious fight to protect her artwork.
When Elisabeth reached out to me, she inquired if I had written any blog posts about copyright infringement. Although I hadn’t covered the topic before, I was familiar with artists who had faced similar issues. I shared stories of sculptors engaged in multi-year lawsuits against companies copying their work. These conversations sparked an idea: why not write a blog post about copyright infringement and invite the art community to share their experiences and strategies for resolution?
| Photo Collage/Watercolor Paper |
24″h x 16″w
Elisabeth’s battle against copyright infringement began when she discovered her artwork being unlawfully reproduced and sold on platforms like Amazon, Mercari, and Artmajeur. The audacity and extent of the infringement left her dumbfounded. It was evident that the sellers may have unknowingly purchased stolen art, prompting Elisabeth to feel empathy toward them rather than seeking retribution.
To address the issue head-on, Elisabeth followed the steps outlined in the Digital Millennium Copyright Act (DMCA). She reached out to the sellers, explaining the situation and referencing her copyright registration number. Some sellers ignored her, while others promptly removed the listings upon realizing the infringement.
While Mercari posed some challenges, with one seller blocking Elisabeth and reporting her to the platform, she persisted. Elisabeth reported both sellers to Mercari, resulting in the removal of the listings and warnings for the sellers. On Etsy, a platform known for supporting creatives, Elisabeth contacted three sellers directly, all of whom cooperated and took down the listings without any resistance.
One notable incident occurred on Artmajeur, where someone had created a painting inspired by Elisabeth’s work. A friend of hers took it upon herself to comment on the listing, raising awareness about piracy. The seller repeatedly deleted the comments, leading Elisabeth to report the listing. Although the page remained, the image was removed with a copyright warning, highlighting the importance of accurate descriptions and disclaimers.
Throughout her journey, Elisabeth maintained a realistic outlook. She understood that completely eradicating piracy might be challenging, akin to playing a never-ending game of whack-a-mole. However, she didn’t lose hope. Elisabeth received helpful advice from her friend Darren Hudson Hick, the author of “Artistic License: The Philosophical Problems of Copyright and Appropriation,” who highlighted some of the challenges that come in trying to deal with these kinds of copyright infringement issues and made suggestions about how she should proceed.
Elisabeth’s persistence paid off. She reported five infringing Amazon listings, and after a few days, Amazon removed them. This victory with such a large corporation brought a sense of relief and fueled her confidence in protecting her artwork.
Fighting piracy can be an emotional journey. Elisabeth decided to break down the process into manageable weekly tasks, stepping away from it as needed. She reflects that while it’s natural to feel anger and an urge to go all-in trying to put a stop to the theft, it’s worth taking a moment to consider how the piracy is affecting your business and manage your time accordingly. [In her case, many of the products being sold online were created from low-resolution images and not something her client base would likely purchase.]
“It’s wrong, it’s frustrating, and you wonder how people sleep at night in good conscience,” she says, “But all that aside, it’s also important to stop and assess how much, or how little, the piracy is impacting your business. There has to be a balance. For artists, fighting piracy shouldn’t overtake time spent on creative endeavors.”
Elisabeth’s experience serves as a reminder of the significant challenges artists face in the digital age. It emphasizes the importance of raising awareness, supporting fellow artists, and exploring strategies to safeguard creative work.
Taking Action: A Process to Address Copyright Infringement
If you find yourself in a situation similar to Elisabeth Ladwig’s, where your artwork has been subjected to copyright infringement, it’s essential to have a well-defined process in place. While each case may vary, the following suggestions can help guide you through the steps to address copyright infringement effectively:
- Gather Evidence: Start by collecting evidence of the infringement, such as screenshots, URLs, or any other relevant information that proves your ownership of the original artwork. This evidence will be crucial when communicating with the infringing parties and platform administrators.
- Contact the Infringing Parties: Reach out to the individuals or businesses selling your artwork without permission. Be professional and clear in your communication, explaining the infringement, providing your copyright registration number if applicable, and requesting the immediate removal of the infringing listings. Approach the situation with empathy, acknowledging that they may have unknowingly purchased stolen art.
- Reference Copyright Laws: Familiarize yourself with the copyright laws applicable to your country, such as the DMCA in the United States. Reference these laws in your communication to educate the infringing parties about the legal consequences they may face if they fail to comply with your request.
- Report to Platform Administrators: If the infringing listings remain after contacting the sellers, report the copyright infringement to the administrators of the respective platforms where the art is being sold. Most online platforms have specific processes and forms for reporting copyright violations. Provide all the necessary details and evidence to support your claim.
- Engage Legal Support: Consider consulting with a lawyer who specializes in intellectual property and copyright law. They can provide guidance, draft cease and desist letters, or help you explore further legal action if necessary. Legal professionals can offer personalized advice based on your specific circumstances and jurisdiction.
- Follow Up and Monitor: Regularly check the platforms where the infringement occurred to ensure that the listings have been removed. Keep records of your communication with the infringing parties, platform administrators, and any other relevant parties involved. Maintain a vigilant approach, as some infringers may attempt to re-upload the listings or continue their activities under different usernames. You can use services like reverse-image searches to help find infringing products.
- Share Your Story: Consider sharing your experience, as Elisabeth has. Sharing your journey can create awareness and encourage dialogue within the art community. Other artists may provide insights, tips, or even connect you with resources to combat copyright infringement effectively.
Remember, addressing copyright infringement can be a complex and sometimes lengthy process. Stay persistent, seek support from fellow artists and legal professionals, and continue advocating for the protection of your creative work. By taking proactive steps and raising awareness, you contribute to a safer and more respectful artistic environment.
Have you Experienced Copyright Infringement?
Have you experienced copyright infringement or faced similar challenges? We want to hear from you! Share your thoughts, experiences, and strategies for combating infringement in the comments section below.
Remember, the fight against copyright infringement is ongoing, but through awareness, education, and support, we can create a safer and more respectful environment for artists to thrive.
Excellent article. The advice you gave her was spot on, and your directions to artists on how to handle copyright infringement were clear and very well-written.
Thank you so much!
An interesting post but I think one is needed now on how to copyright your work and what you should do if you are someone like me who is a photographer with literally thousands of images. I have seen my images for sale on foreign websites but they are not copyrighted so other than sending the website owners an email, I wouldn’t know how to “prove” they were mine.
Yeah, I just finished a comment that touched on that. Doesn’t help that so many gallery sites won’t allow the tricks you can use to somewhat limit the utility of the photo to thieves: keeping on-line images fairly low-rez, adding embossing-style watermarks to the central image, adding “frames” that extend into the image area (and if you use different framing styles for different sites, you have an easy way to trace where they came from) so they’re harder to cut away from the image. At least you can put a watermark signature on them. As for “proving” ownership, the gold standard is registering the copyright (it’s MUCH cheaper if you put a bunch of photos together and register them as a “collection”), and, as I said in my other comment, making datable screenshots and copies of websites where you’ve posted your photos.
Tom, I agree with you that concise information is needed on registering a copyright and obtaining a copyright number. I waded through the Digital Millennium Copyright Act of 1998, but come on, that’s a massive document to read in order to get one piece of critical information.
Wow! A very worthwhile article. I’m so glad you are informing those of us who were clueless about protecting our artwork. I’m learning so much! Again, thank you.
Jason, Thanks for sharing Elisabeth’s experience, happy ending and helpful action steps. Hope I never need this info.
Since I’m also a writer, I also hear stories of authors who have their works flat-out stolen: minor works get bundled and sold to unsuspecting buyers as a turnkey publishing business package, best-sellers get edited enough to foil plagaiarism-checkers and published at a discount to the genuine article–sometimes the original author even gets served with takedown notices by the infringer! (And good luck proving to Amazon that you’re the original!) Which isn’t to say stuff like this doesn’t happen to visual artists; shortly after I joined an artists’ site, a member posted on the boards for anyone who had datable screen captures or saved pages showing her work–she’d been hacked and her entire catalog was on an Italian stock-image site under someone else’s name.
But what I worry about more is how much something has to change between your source image and your own produce to get out of the shadow of “derivative work.” After all, taken to the extreme, I could never legally make a painting of the Twin Towers, since I’ve never been to New York, so my only source material would, by necessity, be someone else’s copyright (unless I lucked into a government image). This is especially concerning if you’re painting realism, which limits how much you can alter from the actual thing. I’ve heard, “Change three things and it’s yours,” but does that really hold if someone thinks your work looks too much like their work?
No. It’s not nearly as simple or easy as that, Wendy. In court, it’s up to the judge, basically, to decide whether the violator’s artwork (harsh name, but theft is a harsh experience for the copywriter holder, too) is sufficiently different from the original artwork to be original. And judges have been all over the place on that one. Most often, they want Way More than 3 changes.
Do you really want to play Russian roulette while paying Lots of money to a lawyer? Why would you do that to yourself?
I would encourage you to look at pieces you love, learn from them, then challenge yourself to do something super-amazing of your own with what you’ve learned.
And remember: photographers are artists, too. That image you love so much? They did the work. Kudos to them, and more kudos to you when you, too, create your own, uniquely “you” artwork.
Good luck!
Oh, and eventually, those twin towers photos will become part of the public domain. If the laws haven’t changed, that’ll be happening in just a few years to those photos whose copyrights are not renewed.
Hugs!
The “Change three things and it’s yours” actually comes out of heraldry, so don’t know if it is anywhere in any law.
I was at a well-known gallery in Sarasota where artists like me were in attendance to see who won the top awards at the biggest show of the year. Earlier I and 2 other artists commented on one hanging that was a quilted photo on fabric of a nationally well-known photographer’s image. It had been colorized but the the original image was exact.
Yes that artist was awarded Best in Show and $1000. One artist did make a strong statement about this to the gallery manager because a condition of entering was signing off that it was our work and not based on another artists work.
I see many paintings in galleries of famous people that are based on a photographers work.
It should not be allowed by the gallery unless the painter/photographer took that photograph.
I currently paint by making wood shapes and painting them. No one could copy my work without a LOT of effort. But I still copyright them and yes I will sue and get money if someone does.
https://www.copyright.gov/
This is actually a very helpful and authoritative resource about all thing copyright, despite (or because of) being a government agency.
For painters, I believe this link will be most helpful. I love this discussion. I was just speaking today about ‘rights’ with a ceramic artist. Thanks to all.
I had the whole series of my musical artworks taken and then being used to create reproductions sold on Ali Baba. Ali Baba is a conglomeration of different companies that use the site. I contacted the company who had them listed and they would take them down briefly only to find them popping back up weeks later and on other sites on Ali Baba. They then started changing my name on them and so they were harder to find. I could have spent weeks and weeks trying to get it stopped so in the end I gave up. Water marks wouldn’t have helped as in some cases as they can still hand paint a reproduction from a photo with one and the same goes if the photo is not good quality. Life is too short to spend time trying to stop this.
This is an important topic!
In terms of preventing copyright infringement or theft of visual work online, I wonder if ‘watermarks’ on digital images of our art really worth it. They can sometimes look distracting, I feel… and with a little work, someone can now easily edit the watermark out if they really want to use the image. I think lower res is a good way to go.
Isn’t it a legally acceptable form of protection to put a copyright symbol with one’s name, and state “all rights reserved?” My understanding for many years is that it’s not necessary to register artwork; by nature of creating, we can automatically say it (any creative work) belongs to us (as the one who created it) without paying for a copyright and registering the work. Has this changed?
You’re right about the copyright existing as soon as you complete your piece and put it into the world. But. If you want remuneration and the violator to stop using your work, you are toothless in court if you haven’t registered your work.
And, of course, it has to have been registered before you discovered the violation in question.
Of course, that was last time I read the copyright rules, so check again to be sure they haven’t changed.
I’m told it’s a height of flattery but to me it hurts when someone does something like the following….
I had a wonderfully successful solo art show and about a month later a woman sent me a picture of a painting she did which is which was a replica of one of mine…
She had taken a picture of goodness knows how many paintings and was very proud to show me a rather untalented version of my painting.
The couple who bought the original might either get very upset …or laugh at this meager attempt at painting.
(There was a rather small posting at the gallery that suggested people not to take pictures of the original artwork without permission of the artist)
________
Here’s another one…
A couple of years ago I was approached by a poster company.. they wanted to buy a painting and replicate it in several different sized versions… I was invited to go to the head office and then to watch the process of what happens in the factory itself… There I saw dozens of people literally copying original pieces of art…
It was for horrifying and fascinating.
Needless to say I did not accept their invitation
Almost daily I am approached on Instagram by someone who wants to buy my paintings as NFTs, or asking if they can use the images in some other way of making money. In one instance, when I declined, I had one person tell me she would use the image anyway and I’d never know. Although I blocked her and reported her to Instagram, which is now how I handle all of those requests. But I wonder about how protected my images are.
Thank you for addressing what is rapidly becoming an even more relevant topic. I haven’t encountered it (yet) with my fine art, thankfully, probably because I haven’t achieved the same level of competency. However I had some very egregious thefts of my graphic design creative, even back in the 90s. As a small 5-person firm, it was almost impossible to fight large, well-known businesses with much deeper pockets, no matter how blatant the rip-off was. They knew that, even with a law firm behind me, I simply needed to walk away.
With the looming presence of AI, and what appears to be a decrease in basic decency in a growing segment of the general population, fine artists will face an ever increasing maze of scams and thefts of creative rights. It’s one more thing that we need to add to our self-education platform. Again, thank you for helping us!
I posted an artwork of mine on redbubble which was considered by the Jeff Dunham foundation to be an infringement on their copyright. I proved it was mine as I had the original drawing of 1971 of which I based a painting on. I had a lawyer send a letter to redbubble which they ignored, stating that any posting on their site that has a complaint on will not be accepted.
I found one of my paintings being sold as a shower curtain. The company was based in China and I was not able to contact them because everything was in Chinese. It was frustrating and I finally gave up. This happened when I started as a new artist, and actually felt complimented that my art was good enough to steal.
About a year ago, the US Copyright Office started a “small claims” process for infringement, the Copyright Claims Board. It is kind of like arbitration, not really a lawsuit. Cheaper to file, more informal, and though you have to register your work just like for federal court, it doesn’t have to be registered BEFORE an infringement occurs. Damages are not as high, but seem adequate for most cases that do not really warrant taking someone to federal court.
CCB dot GOV (I didn’t do this as a “link” because some blogs think all links are spam and block you.)
You still have to serve the defendant/”respondant,” and you still have to collect if you prevail, just like with a lawsuit.
A few things have changed in US copyright law in recent years, for “visual art,” as opposed to “photography,” which are two different things when it comes to registration. Don’t assume what you thought you knew is still true now.
Like the artist in the article, I have also made use of the DMCA takedown process countless times. Many of the offending sites are now overseas, out of reach in any practical way for people in other countries like the US to enforce anything.
Watermarks are usually only removed by a fraction of infringers, as it still takes software and/or skill, enough that most don’t bother. Watermarks keep the majority of your images, as they get spread around, identifiable as yours. They also discourage people who think that a copyright notice is mandatory or its free, a big internet myth.
As far as derivative works, there’s never been a formula to decide how much one can change an image to make using it legal. If it’s recognizable, it’s risky. Better to ask permission. I have found photographers pretty readily grant permission if asked beforehand.
Infringement is costly, time consuming, and stressful for artists. Galleries and org’s that forbid using watermarks are out of step with the times, and pretty inconsiderate to artists. I simply won’t agree to terms that put my work at enhanced risk of infringement. The time and energy dealing with infringements is not a fair trade off for the promotion of unmarked images.