Thursday, April 4, 2013

Inspiration or Infringement?

It is my opinion that we should share ideas and activities within our community and with the world at large; however, I really cringe when I see really beautiful pieces of art, high res or large images, posted on Facebook pages with no copyright caption, notice or watermark on them. They are very inspirational indeed but they also encourage not-so-bright or not-high-integrity netizens out there to copy or download them to use without permission - or to be more blunt, use them illegally. Hopefully the artist has at least copyrighted them but chances are that they haven't, especially if the artist is posting on a regular basis. This is one of the many ways you can get your work easily copied or infringed upon.

There are also cases where other artists blatantly copy your work from your website, blog, products, photographs, and so on. The stories are many, as clearly illustrated by these two blog posts: artist Rachel Anne Miller and In fact, there have been at least five similarly unfortunate tales that I've read about in the past three days. Coincidentally, I already had in mind to start a thread about this very issue.

Inspiration or Infringement?

Not all allegedly copied art is really copied or used illegally. There are instances of similar styles and pieces that are honestly created by two different artists without copying one from another. If you study them carefully, you can tell the difference in hand although maybe the colors and compositions are similar. People can also make mistakes. These are not real copycats so before you expose or accuse someone of copying you should do your homework. This is a highly emotional and touchy topic to discuss, yet it is best to be aware about it.

There are some preventive actions you can take, including registering your work at, reading helpful posts, articles and ebooks about protecting your creative property, or hiring a good intellectual property attorney - or all of above. Note: I am not endorsing any of the books or articles, I am just using them as examples. Each individual artist should do their own homework and decide what's right for them.

I am launching this new series of editorials about Legal Issues in Art Licensing to give some forum to these issues. This series will include articles on copyrights, contracts and other legal aspects of the business with special guests including property attorneys, consultants, and of course the personal experiences of artists themselves.

As an additional note, I am myself learning about these legal pitfalls as I enter the licensing arena and get my own bruises - bogus contracts, copyright violations, and all the like are not fun to deal with. But, you're likely to run into them at some point or another so you might as well learn ahead of time as much as you can and, who knows? might not even happen to you!

This month I want to welcome artist Jill Meyer and publish her essay about her own experience with copyright infringement:

"Has another artist blatantly knocked you off?

I have been knocked off (unauthorized versions of an original work) many times - it began years ago and continues today. I think it happens to most of us. I have tried to stop it in different ways. Sometimes it works, sometimes it doesn't. I think that by this time I am a living legend on POLYVORE. My work has been "borrowed," unauthorized of course, and has appeared there in abundance for many, many years and continues to this very day!

Once I had to write to a very established artist who had unmistakably and very obviously copied my work. I said that since we designed for the same product and our products were in the same stores on shelves next to each other, it would be nice if she did not use my design for the base of her design and then borrow liberally from all of my details as well! She wrote back, took responsibility for her error, and told me that she would try to be more creative and careful the next time she designed something from my work. She never did it again. I could have notified the company with whom she licensed her work, but I didn't wish to damage her credibility or reputation. Anyone can make a mistake and she at least acknowledged her mistake in an amusing way. I myself, in fact accidentally, inadvertently, unknowingly, and completely unintentionally, once used something of someone else's design. When the artist informed me of the error, I immediately and very apologetically rectified it. Again, anyone can make an honest mistake. However, when an artist makes the mistake over and over that's when things become a little dicey.

A brief exchange I had recently with a publisher got me to thinking about this area of licensing. The publisher mentioned that she had seen work done by another artist whom the publisher felt had knocked off my work and idea on a series of images in which she, the publisher, was interested. The images she wanted from me had already been licensed elsewhere so she was not able to license them from me. However, she confided that she was not going to pursue licensing from the other artist at all, even though the images were quite similar to mine. She said, among other things, there was just too much liability associated with working with this kind of artist.

I thought about this extensively after that exchange. There really is a mountain of liability if there is an actual copyright infringement. But there is also the nasty and inevitable blowback of getting the reputation among colleagues as a person who will, after adding a little camouflage here and there, happily use other people's work and ideas and represent them as their own.

There is a big difference between using an existing artwork for "inspiration" and as a place to jump off from for creating a new and different work or copying the artwork and its essence so closely that a publisher or manufacturer could use the two works interchangeably. If they are close enough to use interchangeably, then they might be close enough for an infringement lawsuit and a jury may be asked to decide on the question of how similar they look.

I register all of my images with the U.S. Copyright Office and so should you! If there is an infringement that you and/or your agent wish to pursue, the registration certificate is your ticket into Federal court. Copyright infringements are heard in Federal court and your case will not be heard if you do not have a registration certificate for the works that have been infringed. These certificates are dated, of course, and show the images that have been registered on the certificate. This is also your proof of the date you created the image. The infringer needs to show similar proof of when they created the image. If yours was created first and the infringer had access to it on the Internet or otherwise, then a jury might not need too much more evidence to make a decision.

When someone sues for copyright infringement, they frequently sue everyone who is involved in the infringement. That would include the artist who infringed, the agent who licensed the infringed work, the manufacturer who made product using the infringed work, and the retail outlets who carried and sold the infringed work. The purpose of the lawsuit is to go after those who are liable and especially those who have the deepest pockets for damages, either specific or by statute.

My understanding is that the damages for copyright infringement are extreme — a range of $750 to $30,000 per infringement. Willful infringement can result in even higher damages of up to $150,000 and in some cases there can be criminal prosecution.

So an artist who is inspired to do work that is very close to someone else's registered work does present an interesting dilemma to those agents, manufacturers, and retailers who might use the work. It puts all of these people in harm's way for as long as the image is being marketed. If the copycat has managed to license the work and it becomes a sizable moneymaker, that is a huge incentive and a great big fat invitation to the artist who did the original art work to sue for infringement. It could be a really gigantic payday and excellent retribution, so why not?

The choice of course is up to each artist. There is certainly nothing wrong with being inspired by someone's work, and using it to energize your creativity so that you can make an entirely new and different work. If you are guided by your own vision, decency, and integrity, then it is not likely that anyone will think that you have used his or her work as a basis for your own.

If you choose to use someone else's idea and you pass it off as something that you alone created, then it may very well beg the question of whether you are an artist at all or just a person who can copy and use a smokescreen to try to veil and conceal your lack of originality and your deficiency of ethics. It may also lead you and your associates into a world of hurt that you were not expecting.

Even if there is no lawsuit filed for infringement, it seems that getting a reputation as a person who copies work probably does not bode well for the long haul.

For most of us, it is not really worth even considering this path for so many reasons and on so many levels. These kinds of choices define the kind of person and the kind of artist you are and they have long lasting and far-reaching consequences.

Regrettably, there will always be some who justify engaging in this less than admirable behavior. Pity the unknowing people who support them who are jeopardized by this!

Let's all agree to play fair, and play nice...yes?" ~ Jill Meyer


MADART ~ Megan Aroon Duncanson said...

Thank you Alex! I serious problem that needs to be addressed and made public, I included your blog link to my recent article on copyright infringement, thank you!!

Natalie Ryan said...

Thanks for the great article Alex. Last month I read an interesting article from an Australian based arts lawyer about the dangers of posting about alleged design infringements on Facebook. It's such a tricky (and unknown) area to negotiate right now! The more information we share the better.

cathi mingus illustration said...

Great post Alex!

Barbara said...

Alex, you deserve a lot of credit for addressing this issue. Thank you. By exploring the problem and means to resolve it you are helping people like Rachel and Jessica whose work has been so blatantly infringed upon. I'm concerned, too, that trusting artists, who post images on the net before they are copyrighted and licensed, are in jeopardy especially.

Jill, thank you, too. Your explanations educate everyone involved. Those who copy should know that they are in danger of losing in court if there is a "substantial similarity" to the work they produce, especially if it's after the original work has a registered copyright. Sometimes, artists, whose work was copied for products, have gone without a lawyer right to the top person in charge of a store and had their problems resolved. Also, there are legal advocates for the arts who charge according to what an artist can afford, and win.

Readers of this blog and article will appreciate your well meaning intention to encourage each of us to support and inform one another. Of course, there may always be those less than secure licensors who copy out of fear, etc. and licensees willing to gamble on them, but there's no satisfaction greater than creating from your own "vision, decency and integrity.".

Unknown said...

Thanks, Alex! I appreciate your article a lot & look forward to reading more on the subject.

Natalie Timmons said...

Wow, very well said Jill! And thank you Alex for bringing more light to this subject. I'm interested to learn more about some of the global aspects of copyright infringement and recourse and look forward to your future posts.

Unknown said...

Thank you all very much for your nice comments :).

Hi Barbara - you totally get it and I am again encouraging other artists to protect their work and police the illegal use of their art. It's in your rights to ethically and legally pursue a copycat. But be sure it is indeed an infringement before taking actions!

Here are a couple of links to Maria Brophy's articles that you might find useful: and


Barbara said...

Thanks for the additional articles, Alex. Maria and Drew have learned the hard way how to protect their business and it's good they're vocal. You're busy. I'm busy. We're all busy, but this topic isn't going away and we need to learn all we can. I look forward to being further educated.

Anonymous said...

Thanks Alex and Jill, great post. This is a complex topic and has been an ongoing issue that seems to be growing since
the age of technology. Here are some of my additional thoughts.

Perhaps, some artists are not aware, that ideas and themes are not copyrightable.
It is the expression of one's idea that is copyrightable.
For example , those of us who are designing for this market are working on the same themes all the time.
There is only so many original things you can do with these themes. In most cases, our originality comes from
the combination of motifs we are incorporating into a design, and the way we work with the colors, the textures
, the patterns and layouts . For example, if an art director gives a few artists the same assignment, something very specific
like paint a "Monarch Butterfly" and put that on a "White Ball Butterfly Bush" use a green background, use a realistic watercolor and put it on a 5 by 7 greeting card.
Although everyone's interpretation will be different if the artists are using a similar painting style, using the exact colors, it might appear that
the designs look extremely similar and even copied. Perhaps no copying was involved.
One way you can tell if it was copied , Firstly start with the layout, study the layout to see if there are strong similarities.
You can look closely at all of the elements and details, for example, do the little petals look exactly the same in both images, you can even do this by counting
how many little petals in one motif, compared to another. There will always be similarities, but there will be nuances, that can be found
that might indicate a copy.

Something else to consider. Many artists who create artwork for licensing
incorporate public domain material, and copyright free sources of art
into their works, some using these sources as the focal point of their design.
For example, if two artists use Redoute botanical artwork in their designs
in order for them to copyright that design, they need to create something unique with the design.
This situation gets very tricky . Two artists can create a design using the same focal point and it can appear that there has been copying going on.
Another example, if you submit your designs to a manufacturer using public domain material
providing the manufacturer knows the original source, and has verified that it is in the public domain,
they cannot go out and re-create your exact artwork in the way you have created it without infringing your copyright.
However what they can do is study that artwork and create their own version using the same motif you used as a central focal point.
So often this is the case, and the manufacture doesn't need to license your artwork. So when using public domain artwork
it is extremely important to do something very unique to differentiate yourself when using clipart.

Jill Meyer said...

Substantial similarity is the standard of the court.