Copyright Law for Artist and Fans
I think it is important that both artists and their fans familiarize themselves with copyright law and what it entails. All too easily, we get lost in the amassing emotions connected with our works. Handling it poorly can have detrimental effects on all involved and can ruin the reputation of an artist. What is worse is that anyone can be a victim or become the accused in this digital age, so understanding your rights is key to protecting yourself and your works. Fans need to understand copyright so that they can take the right steps in helping their favorite artist defend their work as needed and not make the artist look bad—because, let’s face it, your audience ends up defining you to some extent. I consider this a serious topic of discussion, and thus am not as free with images and fancy talk. It is a long read, so bookmark it to take it in steps.
I have wanted to make this informational piece for a long time, but life has made it difficult for me to sit down and actually pull it together. There is so much information out there, and it is often very confusing--especially for people who are new to art. I've actually been looking into Copyright for a few years now, ever since I wanted to start selling art. I hope to make another informational piece about taxes--but that one is even more difficult! As of the writing of this piece, the information is as accurate as can be hoped for…but the world of law is always in flux. Already, measures are underway to initiate changes in the UK and Europe, and other countries are following suit. The problem is the difficulty in making laws that both protect the creator and allow for creative advancement. It is a tricky balance, and it requires a lot of refining.
First up, I want to talk about what copyright is. It is basically our right to an original creation that protects it from being used unlawfully. Copyright actually is not a simple concept. There are a lot of gray areas, and it is only getting grayer as laws try to keep up with both the needs of creativity in society and the rights of the creator of a given work. Which brings us to art theft. Art theft is a general term used by most people to identify any form of copyright infringement. This can be anything from tracing, downloading and putting your own name on it, or drawing and making art of copyrighted work. Yes, every fan artist ever is technically an art thief. Sucks, I know--but there is more to it than that! We will get to that part later.
Something a lot of people don't understand is that there are additions to the laws of Copyright to balance the right of the creator. You see—if copyright law only favored the original creator of a given right, then it would stifle creativity, news and information dissemination, progress, and innovation. Things are created because they are built upon the foundations of those before. There has already been a history of what happens when laws too stringently defend the creator. Some creators, especially larger corporations, greatly abused that right by turning in any little thing. Sometimes things that were actually not infringement at all! It was horrible--but it resulted in more comprehensive laws to help balance the two. So what are those things that balance copyright?
Well, first of all is the Fair use. Everyone knows this one because so many people make a claim to it. There is a problem with claiming Fair Use, though: it is a legal defense. Basically, the only person who can determine if something is fair use is a judge in a court of law. If you don't believe me, you can check out the official US copyright law and fair use explanation in the references below.
The purpose of fair use was to allow the use of factual information for things such as news and education to easily utilize tools to grow and give out information. It is also an important part of critics and parodies, which are less factual and more opinion/creative based. While things that fall under academia are fairly straightforward, it gets dicier when you get into the more creative and artsy side of things. At that point, the outline is very open and broad, which means that it is subjectively determined by the judge. So if someone claims Fair Use, they better hope that the judge is on their side. Of course, usually the judges try to weigh the evidence as objectively as possible, but it is rare that a former case will set a pattern for future ones. There are several examples of real cases, some that look extremely similar but have very different outcomes.
Here is an anecdotal example that kind of sums up the many examples on the Copyright official website. An artist created a beautiful piece of a woman lying relaxed and calm, sitting in shades of blue and green, her eyes mostly closed. Another artist took this piece and changed the color to hot red and fiery orange. There are two types of decisions that can be reached by this:
The first judge may automatically call out infringement because only color was changed, and the piece was essentially the same. The second judge may see that the heart and atmosphere of the piece was completely altered by the color change, giving it a sultry look and thus changing the message. Both judges are prone to change that opinion, though. For example, if the eyes were changed slightly as well, the first judge may say it fell under fair use. If the color was not changed and the eyes were changed, the second judge might say that it was infringement. Can you see how utterly open-ended this can be?
Another form of balance is the Creative Commons licenses. These are more of a way for the artist to clearly indicate what you will allow your work to be used for. It also serves as a kind of loose framework for international usage because--well, copyrights in other countries are very different from the US. As a side note, there is a good chance that the infringer is not of the US. That makes things a little more complicated, but we won't get into that here because I have yet to get that deep into the research.
There are a plethora of terms used within copyright to determine what form of infringement, if any, is being incurred and how the artist and lawyers can view this. It is something that I recommend reading up on for everyone, but just knowing these basics is enough to get you started.
Okay--so we talked about copyright and art theft. Now on to the stuff that really boils the blood of many: what to do. I am going to break this down into two categories: original artist/copyright holder and third parties--this means anyone who is not affiliated with the artist or the person being accused of art theft, IE the audience, the average internet surfer, etc.
The long and short of it is this: art theft, or copyright infringement, is a violation of the law. It is a legal issue. What that means is that only one person in the entire world who can make a claim that something is copyright infringement is the artist. The copyright holder. They are legally the only people who can claim something is an infringement. No one else. The only one in the world who can verify this is a court of law. This is all very plain and simple.
Let me put it this way: if I was walking down the street and I saw someone driving your car--could I report that car as stolen? Of course not. Only the owner of the car can report a car stolen. Technically, for most crimes, only the victim can file a report and take the criminal into court. The only exception is if the victim is mentally unsound/disabled, or a child. In that case, usually the legal guardian or care taker--or someone with power of attorney-- would be permitted to do so on their behalf. The reason is simple. In the case of the car, how am I to know that you didn't lend it to someone, that you didn't sell it, or something along those lines? As a third party, I can't know that. Sure, there are times where if you see suspicious activities, you can call the cops. But generally speaking, they will just check it out and probably not do much. They are limited on what they can do. Even the "probable cause" thing has a bunch of limitations attached to it.
Copyright infringement/art theft is no different. Without the word of the artist, we cannot possibly know what is going on in the background. Many artists give certain rights and/or may not consider it to be infringement. Others may have done a deal via email and just didn't announce it. What it comes down to is: it isn't infringement or theft unless the artist/copyright holder says it is.
That takes a lot of power away from many people, I know. We all want to defend our beloved artists--right? So what can we, the third party, do?
Our job as potential witnesses is extremely simple. Notify the artist. That is it. You are finished. Of course, you can be more helpful. In the notification, include a link to the stolen art and a link to the DMCA take down form or the instructions for that website that tell them how to do it (see below for a list of some of the more prominent ones). After that, your job is done. You do nothing else. Don't notify the person you think is the thief, don't notify other people---that is it. As a third party, you have no right--legally or otherwise--to make any claim. Plain and simple. There are dozens and dozens of websites that support this, as well as the US copyright website itself. I will repeat it one more time because it is that important.
ONLY THE ORIGINAL ARTIST/COPYRIGHT HOLDER CAN MAKE ANY CLAIM OF ART THEFT/COPYRIGHT INFRINGEMENT.
After you notify the artist, you are done. You can choose to stop following the infringer, or you can choose to ignore them--but that is it. If you get a notice from someone who is not the original artist saying this or that person is a thief, or this or that website is infringing on copyright, you have a few choices. Ignore them, ask them to inform the original artist, or inform the original artist yourself. You can choose to continue to watch the accused, ignore them, or whatever. At this point, you have no way of knowing if they are truly infringing on the work because this third party person is not the work's owner. They have no legal standing and no foundation for the claim. Technically, even if they are the brother or sister of the artist in question, they still can NOT make a claim on their behalf. See the reasons above for the law examples. It doesn't matter what screen shots they have, what conversations they had with the infringer or otherwise. As a third party who has no claim on the artwork, the third party person has no right to accuse.
But---some websites allow third parties to report it!! Well, yes, but that is becoming less and less. They are finding that too many people (and corporations!) are abusing the system, creating hundreds of false or useless reports. This means the website has to spend money, time, and man power sifting through useless claims. It's a waste and they can get into trouble for a false take down. Part of including a way to report offers some protection to them, but not completely. What many websites are finding, and many more are implementing, is that it is easier, faster, and far more efficient to wait for the original artist to make the claim. They can provide proof of infringement (including any emails or private messages) as well as take legal action. This proof offers a layer of protection to the website as well. Yeah, it is a CYA policy, but it is a smart one when you consider the nature of internet mobs and white knights.
There is another issue with third parties trying to fight for the original artist. As someone who is unrelated to the work in question, the so-called defender can be sued or reported for harassment, defamation and libel--ESPECIALLY if they are accusing someone who is innocent or is working within the guidelines provided by the original artist. It is just too risky and messy to stick a hand in the pot when you have no idea what is in there.
There is one other way in which you can help your artist--BUY THEIR WORKS
Support them by donating to their Patreon or purchasing works from their galleries so
that they can have the funds they need if they choose to fight the infringement. And respect them if they chose not to.
Okay--so what do you do if you ARE the original artist. This is where you have much more power and authority over what happens. You can choose to report the infringer, ignore them, or take them to court. Before you act, though, there are three things to consider (there are others, but these are the most important).
1) Could this possibly be considered Fair Use or protected under another branch of copyright?
2) Is it impacting me, my sales, or my exposure?
3) Do I have the time and resources to deal with it--and is it even worth it?
These are three very important questions to ask yourself. If there is a good possibility of it being covered under fair use or some such, then you will waste a lot of time and money trying to fight it. If it isn't impacting your exposure and whatnot, then it might not be worth it to pursue on such an aggressive scale. And--the biggest concern--is, of course, money for lawyer fees, time for court dates, etc. These are all very important things to think about. A company has a legal department to handle all those things--but a freelancer does not.
Now, in dealing with infringement, you don't necessarily have to issue a takedown order. You have several options. You can request the infringer to credit your work--this is a reasonable option as many, many people who love the work just don't realize that they should do that. The countless majority are very ignorant of copyright and how to pay homage properly to their beloved artist. It is highly recommend by many sites to not leave a public comment, though. Such discussions should be maintained via email or private message. A public comment should be done as a last resort (IE there is no other way to contact the infringer). And do not do a call out journal calling your fans to arm. Constantly messaging, having dozens of messages sent to them, etc, is harassment and the infringer can totally sue you--and them-- for it.
BUT! So-and-so did a call out journal! Yes, I have seen them--and they were not calling out for defenders. They were reaching out to fellow artists who were also possible victims. Generally, those journals give a link so that you can verify if your work was stolen or not and report as necessary--because the more valid reports that come through, the more serious a website is likely to take the accusations. Some of those journals ask for donations and funds so that they can take legal actions, but most just want to find the original artists so that they, too, can defend their work. Another purpose of the journals is to let fans know that they are not affiliated with that site/seller and not receiving any profits if purchases are made from them (IE they are not supporting the artist if they buy from that seller/website). There is a huge difference between this type of journal and the other. Many of these proper callout journals tend to end with asking their fans to NOT note or harass the infringer.
You can, of course, request the image to be taken down. This is an iffy course and may require you to make a threat of legal action, which could very well backfire. There are a minority that will call your bluff. Others will take down the work, with or without a threat, and apologize. Still others will take down the work and then put up another one. There is a lot going on here--from cultural differences in copyright, to ignorance, to just plain rudeness. It is hard to tell what is going on with the infringer on the other side when there is a computer screen between you. An example of cultural differences is China. It is a sad fact that China does not take copyright infringement very seriously. There are the good people there, but the general culture is one of acceptance that fakes are everywhere and okay. If you are dealing with someone from a culture like this, it might be very difficult to get anything done on any level. Another thing to keep in mind.
The best course for any artist that wants to have the work removed is to report the infringement to the site for a takedown. It leaves you anonymous, the work will get taken down pretty quickly since you are the copyright holder, and you don't need to get into a fight with the thief. Honestly, if you truly feel it necessary to remove the work, this is probably your best option.
You have three years for each infringement to lay claim. That is right--even if the infringer has been doing this for years, if they do a new infringement tomorrow, you can lay claim to it. This is primarily a legal thing. I do not think that websites care about those kinds of dates. This also means that you can pick and chose what to fight--and many companies and corporations use this diligently.
And here we come to Fan art again--we have come full circle. Companies are very well aware of the copyright law and know that they don't have to fight every battle. They look at infringement in the same manner as I mentioned above: possible fair use, impacting sales/exposure, worth the time and resources. Most Fan art does not impact the company or studio, but actually increases their exposure and revenue. This is why they allow fan art and encourage it. In fact, this is a big reason why many freelancers don’t report: they actually receive a small benefit in exposure and sales, depending on a few factors. The studio/company/whatever gets major benefits for each fan art that is produced, and they don't have to pay millions for marketing and advertisement because we fan artists are doing it for them. Pretty sweet deal, right? Of course, if you are making money off the fan art--especially a LOT of money---they will totally take you to court. And they have every right to. That is their property you are using and that loads of cash you are making is cutting into their possible profits.
Many companies and studios actually have a contract to allow you to legally sell their stuff, too. You have to pay a fee, of course, and give them a percentage--but that means that person is legally allowed to sell that work. Large studios like Hasbro for My Little Pony, generally have these (and they can be expensive to start!). Smaller ones like Rooster Teeth, sadly, do not.
So basically, copyright and infringement has become more clearly defined and has a bit more black and white guidelines to follow. It used to be looser because it was unnecessary to be so strict, but with the rise of the internet and digital media, things had to change. In some ways, it is good--there is a clearer path for artists to defend themselves, and a clearer path to ensure that innovation doesn't stagnate. In other ways, it isn't so good because much of the law is still very subjective and open to interpretation. But that is exactly why the reporting is limited to the artists themselves.
Another big issue that sometimes pops up is: I was falsely accused! Hey, it happens. Some jerk falsely accuses you of infringement or theft and they won't leave you alone. They harass you, they spread lies about you--it is ruining your online life! If you recall up above, I mentioned that these third party defenders are liable for harassment, libel and defamation. Don't get in a battle with them. Just block and report them. In reality, you cannot do anything about what they say to others and how those others respond. Putting up your own call out journals and trying to "rally the troops" puts you in as much hot water as the harasser. The best you can do is make sure that you credit work and make any evidence of proper use visible in places like the artist comments and whatnot. Like the artist, you can choose to fight them--but that is a legal thing with time and money, so you have to decide if it is worth it. I haven't looked into false accusations as deeply, but so far, the summary is: block them, report them, and get on with your life.
As for views on copyright infringement and how to handle it--the art community is split. Many say that we should take them all down in a blaze of fire! Others say that we should chill out and just let it go if it isn't having any negative impact on us. Each artist has their own view on it, so we can't really speak for them. What we need to do is respect the choices that each artist makes in regards to their works and support them in appropriate ways. Keep that in mind.
I hope you found this entry both informative and useful. Please continue to educate yourself on how to protect your works, as laws are constantly in flux. The changing times will mean a lot of what is on this journal will most likely become outdated, so use these resources to stay abreast of the situation. I will, too, of course.
Okay! Now for some links. First up, I thought these for take downs would be helpful. Including the takedown instructions are especially useful those who do not speak the language of the website well. Trying to navigate a foreign site to follow proper steps can be a nightmare, so it is important to help them out and include the information for them.
*Deviantart: https://help.deviantart.com/dmca (must make an account)
https://about.deviantart.com/policy/copyright/ (send an email or letter to address near the bottom if no DA account)
?Facebook: https://www.facebook.com/help/contact/937027619679465?helpref=faq_content (probably need an account, but doesn't specify)
?Patreon: https://patreon.zendesk.com/hc/en-us/articles/208377833-How-do-I-send-a-DMCA-takedown-notice- (probably need an account, but doesn't specify)
*Pixiv: https://www.pixiv.help/hc/en-us/articles/231497188-One-of-my-works-has-been-republished-on-pixiv-without-my-permission (need an account)
*Twitter: https://help.twitter.com/forms/dmca (need an account)
Tumblr: https://www.tumblr.com/dmca (do not need an account)
*Youtube: https://www.youtube.com/copyright_complaint_form (need an account)
REFERENCES
Official from US
https://www.copyright.gov/help/faq/faq-general.html
https://www.copyright.gov/fair-use/index.html
https://www.copyright.gov/fair-use/more-info.html
Official from WIPO
http://www.wipo.int/copyright/en/faq_copyright.html
Lawyers and Universities/Educational:
https://fairuse.stanford.edu/overview/fair-use/
http://guides.lib.umich.edu/copyrightbasics/faq
https://alj.orangenius.com/understanding-copyright/
https://law.freeadvice.com/intellectual_property/copyright_law/fair_use_copyright.htm
http://www.copylaw.com/new_articles/copy_myths.html
http://copyx.org/
Creative commons
https://creativecommons.org/licenses/
Why No 3rd parties?
https://www.newmediarights.org/business_models/artist/how_do_i_report_copyright_infringement_youtube
Copyright Myths
http://www.templetons.com/brad/copymyths.html
Artist Opinions and help
http://neladunato.com/blog/how-to-deal-with-online-art-theft/
https://paintingdreamscapes.com/how-to-defend-your-art/
https://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/
https://craftymaelyss.deviantart.com/journal/How-to-report-art-theft-bullying-n-more-570011077
https://protectart.deviantart.com/journal/The-Art-Theft-Discussion-544490149
https://aminoapps.com/c/art/page/blog/art-theft/mYhk_uxq0MDxK18YE0dRNMQJla7B6j
https://github.com/github/site-policy/issues/46
Videos
https://www.youtube.com/watch?v=M_oFTqwGKEk
Help with DMCA
http://www.dmca.com/
**Oh yes, almost forget an important disclaimer: I am not a lawyer and cannot give any legal advice and all that. This is merely an informational piece.
***Final note. Yes, I did post this on my Everything Gallery at https://www.deviantart.com/anjyil. This is just a cleaner version for everyone.
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