Saturday, January 10, 2009

Stealing Images Online… and other Copyright Issues

Stealing Images Online… and other Copyright Issues

The internet has created opportunities that visual artists would not have had in the past. However, with internet driven opportunity comes the need for greater responsibility-- artists need to be prepared to protect their art if a company or individual infringes upon them. It goes without saying that visual artists who utilize the internet for gaining exposure are faced with this burden. That said, it is a necessary burden. The rewards of online exposure outweigh the risk-- and with proper documentation the risk, under current copyright law, could very well become a reward if your art is infringed upon.

Dion at Art News Blog recently posted a blog entry, titled ‘Stealing Images Online‘ , that reminded me of some of the opinions that Gary Schuster, an attorney with Jacobowitz & Gubits, LLP (Walden , New York), stressed on the Myartspace Blog with the Art Space Law series. Mr. Schuster covered various topics, such as the legal aspects of image theft, copyright infringement, appropriation art, derivative works, copyright law, fair use, and image manipulation / alteration. Thus, I feel that it is important to highlight these topics once again:

What you need to know about Copyright laws . In regards to copyright registration and cases of fighting copyright infringement Schuster stated, “You may not bring a copyright infringement lawsuit unless the work has been registered. Furthermore, if the infringement occurs before registration, you are limited to receiving your "actual damages". If the infringement occurs after registration you are eligible for "statutory damages", which can be both higher and easier to obtain. You will also be eligible to recover your reasonable attorneys fees and costs.

Actually, the mere fact that you are eligible for statutory damages, attorneys fees and costs puts you in a stronger position in pre-litigation settlement negotiations. If all you can get is actual damages your settlement leverage is much reduced. With a law firm retainer of $5,000 or $10,000 or more for litigation, you definitely want to try to settle. You get all this for just $45.”

Ripped and Altered? What You Need to Know . In this entry Schuster discussed copyright infringement-- among other topics. Concerning copyright infringement Schuster stated, “Contrary to urban legend, there is no particular percentage which needs to be reached in order to permit a finding of infringement. Generally the tests are (i) was there access to the first work, (ii) was there copying, and (iii) was the copying substantial…”

Schuster went on to say, “Generally it means that the infringer copied a substantial portion of the original work. It doesn’t have to be literal, word-for-word copying. The "total concept and feel" of a work can also be protected by copyright. This is one of those areas where it comes down to "I know it when I see it." One thing that can be said with certainty is that substantial similarity is a question of fact rather than a question of law. The jury will determine whether the two works are substantially similar.”

Concerning derivative works Schuster stated, “A derivative work is, quite simply, one work that is derived from another. So, for example, a film is derived from a novel. A musical is derived from a film. One of the exclusive rights that a copyright owner has is the exclusive right to prepare derivative works, and authorize others to. If you own the copyright in a painting you have the right to prevent others from creating other works, derived from your painting, without your consent.”

Imagine Fair Use . Schuster explored the issues surrounding fair us. He stated, “Fair use permits the copying and distribution of copyrighted material, without the owner’s consent, for purposes of criticism, commentary, news reporting, teaching, scholarship or research. Fair use is where copyright law gives way to the First Amendment guarantees of freedom of speech and expression.”

Schuster provided examples of the controversy that can arise over claims of fair use. In the article Schuster described three specific tests used to determine whether a claim of fair use is acceptable or not. He also stated that issues of this nature become one of Copyright vs. The First Amendment if they end up in court.

The advice that Mr. Schuster provided makes for a good read if you are interested in art law. However, his advice does come with a disclaimer-- The information in this article is for general information purposes only. It is not, nor is it intended to be, legal advice for any particular person or circumstance, or for Internal Revenue Code purposes as described in IRS Circular 230. This article is not a substitute for obtaining legal advice from an attorney based on your particular circumstances.

As for me I can only say that at heart copyright law is an issue of respect .

Take care, Stay true,

Brian Sherwin
Senior Editor


Anonymous said...

Ive been dealing with this for over 5 years online. When I was on eBay, it was rampant and I had to report abusers nearly daily. Most were Chinese rip-off artists, but plenty were good ol Americans trying to earn a buck off of my success. To their credit, eBay was very good at taking down the copied works and getting rid of sellers who reoffended. But it got crazy, a group of artists formed a task force. It could have become a full time job. So I had to leave eBay. I now list my works for sale on sites where a. you cannot tell easily that I am successful without really doing some work. No feedback system. or b. small number of artists works listed, so any infringements would be seen quickl. I also make a point of getting to know as many artists on the sites I list on too, so that my "friends" would spot a thief and report it to me. Still people ARE using my images illegally all of the time. I have caught numerous My Space users using my work as background for their page. Not my friends, but strangers who use Yessy's image host. I caught them by looking at my statistics which lead me to their page. Again, it can get CRAZY.

So I am selective about the sites I list on. I have friends who have my back. And I NEVER put anything online that I 100% dont want ripped off. Some pieces are sacred and will never appear online.

Sharon Cummings

Anonymous said...

Thank you for sharing Brian. Articles such as these are always good to share with everyone so they know. Though I have discovered it isn't neccasary to always register a work, though it is a good idea. I had something almost stolen once (menaing, they tried to claim my art as theirs) and I busted them, and I was regocnized as the true artist of the work based on evidence and witnesa accounts. It was sad, because their stupidity ended up costing them. They had to pay me. But I do register my work (both art and written) now as much as I can. Thank you again and best wishes.
Angeline Hazime~

Anonymous said...

What you are basically saying is the definition of plagairism. Relying on someone elses work for an effect. Not your own. One can use an image as part of yours, or a piece of anothers, and not be stealing, as Rauschenberg and others did. That deterioated into bad design and "appropriating", in rap and 'art". But it has always been around, just not always having courts to advance the cause of an artist. I remember the German Expressionist show at LACMA in the 80s, and much of the lesser works by forgotten artists, was stealing directly African art, then cleaning it up a bit, and losing its soul.

Picasso said artists are all collectors, we accumulate ideas and images in our heads, and use them in new ways. Demoiselles d'Avignon was directly taken form one small Cezanne, with two of the womens figure replaced from another Cezanne. But was treated in a completely different way. And so not plagairism, but was building off another. Which art is, the accumulation of human history and creative development, adding another link to the chain, for who we are has always been in art, just evolved, not necessarily better or new. Just adapted to more complex situations, but mans mind, body and soul still the subject, and we differ very little from the beginnings of human culture. Which correlates to mankind, nature and god.

When cut off from our roots, we are adrift, and lack meaning and substance. So using what works for others, has been proven to stimulate ones passion for life, is not just good, but our job. Study, always, and learn, constantly. But relying on others for that effect is weak, sophomoric, and these days, criminal.

Artists must get back to those roots, and grow from the detritus of the current downfall of mans greed, avarice, and arrogance. Search for what is real, basic to all, and true. For while there will always be thieves, often disguised as artists, these artistes are always short lived, and will not last. If you want to contribute, then you will take the hard path, not the easy one. One msut have sometrhing to say before one opens ones mouth, stealing others words wont do it, for art is the visual langauge of all mankind, not just for the few. You would be amazed how many people who have lived hardworking, productive, ethical lives respond to real art. Time to get to work, and start making some again. The Age of arrogant Excess is over.

art collegia delenda est