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Tania Ernst

Art Theft
By Robert Jones

Just as a point to address, most of this article was written with U.S. Federal copyright laws as the reference. International law is always complicated, and that notion is no less true with copyright law. As a rule, but not a concrete rule, the order of enforcement is governed locally from the location the artwork is created. However, even though this is true, several international copyright conventions extend copyright protections from country to country. This means that if a work is created in the U.S. and is infringed upon in Sweden, the U.S. copyright protections would apply.

Also, in an effort to smooth over most of the wrinkles of local enforcement, these international copyright conventions, and there are many, include nearly all nations on Earth on their membership lists. This effectively puts the bulk of copyright law, regardless of where you live, on a universal standard around the world. So, while the finer points of local law might invalidate bits of this information to people outside the U.S., and international law issues could easily come into play on the internet, to the best of the authorís knowledge, what has been written within this article is accurate internationally.




It's a pleasant evening. There's nothing much on the television, so you decide to surf around and look at artwork. After about an hour or so, you come across an interesting gallery site. Browsing through it for a few minutes, you suddenly pause, and look at a piece of work by an artist whose name you don't recognize. Somehow, that piece of artwork seems very familiar...

You've just come across a piece of artwork you think is an infringement. So now what do you do?

Let's answer this question in two parts. In the first part, let's deal with the options available to the creator. After all, when it really comes down to it, this is the creator's problem exclusively. It deals with his property and theft perpetrated against it. So, as a creator, here are a few steps you can take to deal with infringement.

First and foremost, take a deep breath. Don't punch out public accusations and angry letters to the suspected art thief. Acting out due to emotion might cause you problems in the long run. Yes, you feel you've been wronged, but you have a course of action to take that will probably yield much more satisfactory results than a virtual equivalent of a schoolyard fight.

The second thing you do is brush up on intellectual property law, focusing your studies specifically to copyright law. Copyright law, as with almost all other kinds of law, can often be very subtle in its interpretations. Studying this sort of thing might seem a little bit ridiculous and tedious to do for the average person; however, copyright law has a whole slew of myths, generalities and paranoid constructs built around it. To go into any dispute without getting your facts straight would be folly. Knowledge is power, especially in the case of law.

If you're worried about time, take this into consideration. The time limit in U.S. federal law to bring suit against a person for infringement is three years. Of course, you probably don't want it to go as far as a lawsuit, but it just might. While three years isn't exactly an age long statute of limitations, it is certainly enough of a buffer for you to scan a few official web sites or check out a couple of law books for a few days in order to figure out where you, as a creator, stand. For example, my rights as a creator in the U.S. might be different from the rights of a creator in Sweden. How those rights vary from country to country could have a significant impact on the resolution of the dispute. Also, since there is plenty of international communication through the internet nowadays, a case with international implications is far from implausible. So, your first action should be to crack some books!

Now you know what protections are afforded to you as a creator. You should also be aware of what is infringement, and what is fair use. You should be able to judge under legal criteria whether the suspect work falls under the scope of infringement. Now, the third thing you do is to look closely and compare the suspect work and your original.

There are a few things you need to keep in mind here, the biggest of which is the difference between an idea and an expression. While it canít be pinned down to an all-encompassing formula, the rule of thumb is that ideas are amorphous and intangible, and expressions are the realization of an idea. Where ideas are big and formless, expressions are contained and specific. This is a bit of an abstract idea, so Iíll give you an example. Say I have a great idea for this gunfighter character who runs around a spooky post-apocalyptic ďold WestĒ setting. Itís an idea that has been expressed in several different incarnations in the past. However, my own expression, or physical application, of the idea, be it a drawing or a story or a comic book or a movie, etc, etc, can be completely original despite the existence of the same type of expressions containing the same general idea. Get it? So, if this is a case of ďyou stole my idea!Ē then unfortunately, you might be out of luck.

The same goes for style. A person might draw pictures or write stories in a style that is so similar that it might be hard to tell you and the offender apart. However, style is one of those intangible things that isnít really covered by copyright. Copyright protection only deals with specific elements of specific pieces. So, if this is a case of ďyou stole my look!Ē then again, you might be out of luck, although there are common law precedents that cover such things.

And now onto subject matter. This is where specifics come in. I recently saw a case in which a girl was blatantly copying the composition, form, context, even color scheme, of several pieces by different artists, line for line, only doing so in her own individual style, and then passing them off as her own. In that case, it was pretty easy to define the artwork as infringements. But what about another incident that I recently witnessed involving a very simple face done in an extremely similar style, with the same mood and context attached to it? I myself have drawn and displayed very similar pieces of my own, so it could easily have just been a case of coincidental similarity. That does happen. Beyond coincidental similarity, what about doing work based on a subject matter that serves to inspire a great many pieces of artwork. Say, for instance, there are two watercolor paintings of the Eiffel Tower done on a cloudy afternoon, or a standard photograph of Mt. Rushmore. Certainly there are pieces of artwork that exist in this world that have a veritable clone floating around out of pure coincidence. You, as a creator, have to take that into consideration when examining a piece of artwork.

So, now youíve gone through all of the precautions. Youíve held back, boned up on your rights, studied the situation, and have deemed it to definitely be a bald faced imposter of your precious artwork. You are now ready for step four.

In the most drastic situations, those involving defamation of character, loss of money, or money made by others on your work, the best solution to this problem would certainly be legal action. This is your property, after all. Would you stand idly by and watch a man cut timber or draw minerals from your land without your consent or involvement? As unpleasant as legal action might seem, sometimes it is just plain necessary.

However, legal action isnít the only option that an artist has. Taking a case to court should probably be reserved for such cases that are either very damaging to you, financially or otherwise, or if it is the only option left for you to take in order to get an infringing person cooperate. Be that as it may, it might be in your best interests to contact a lawyer and have a consultation about the situation. Lawyers are experts, and they are the ones to go to for advice on law.

Beyond contacting a lawyer, what do you do if you donít think that itís a case for the courts? The very first thing you absolutely need to do is register your claim of copyright for the work. The cost is fairly minimal, with the cost in the U.S. ranging from $30 to $50 per registration. If you are strapped for cash, you can, of course, choose to register only the work that is being infringed. If that is more than one piece, in some cases you can even register more than one piece per registry. Again, check your local laws regarding the specific ways to register, and the costs associated with the process.

Registering your work serves several purposes. In addition to being the initial step to take when filing a copyright dispute suit within court, registering provides a concrete time and date to go by when looking at the chronology of a claim. Indeed, the file date is generally the most official date to go by, since a person could claim to create something at any time. Besides, things like notary public stamps and the fabled ďpoor manís copyrightĒ method of mailing a work to oneís self are easily falsified, and shaky evidence at best. Filing a registration provides a federal record to go by, and given the relatively low cost of registration, it is the best option by far. In truth, the best form of protection you can give to any of your work would be to register it before you debut it to the public in any way. That is the surest way to keep yourself fully protected under the law, since after some amounts of time, certain legal options for collecting damages on infringement begin to disappear.

After youíve registered your work and you have a record of your claim, contact the infringing person. Since this is the internet weíre talking about here, that might be easier said than done. Since so much about the World Wide Web is based on up front anonymity, it is often a sad fact that website maintainers donít have easy ways to get into contact with them. Donít let that discourage you. You still have hope to find the culprit. For sites that have their own URLs, the best thing to do is look up the owner of the siteís address with a WHOIS service. Most web address registrars, such as Verisign, keep records of who owns what web address, including mailing addresses and e-mail addresses. If the work is being displayed on a free web host, or otherwise unregistered address, the creator can often be tracked down through the ISP, either by a directory search or by contacting the ISP administrators directly.

Because of nasty disputes in the past and present, most web hosts and ISPs take pretty quick action to block infringed work, so if it happens that you canít contact the infringing party directly to resolve the situation, or the individual proves to be obstinate in his refusal to take down the infringement, your next step would be to contact the company that hosts the site. This, of course, includes art display communities like Elfwood. As a general rule, web communities, be they sites like Elfwood, or forums, newsgroups, topsite lists, auction sites like eBay, or other such entities with large numbers of members, tend to be moderated in some way. Use the moderators to your advantage. Elfwood itself has the ERB, which is there, not only to keep content within the siteís guidelines, but to also help solve personal disputes between its members. If youíve done your best to try to contact or reason with the other person, but have not been able to succeed, it is time to call upon someone with some executive power.

Now, a word about contacting a person who has infringed work.

When contacting a person about an infringement you feel they have made, the first thing you need to do is absolutely keep it out of public areas. To stress the importance of that statement, here it is again; KEEP YOUR DISPUTE OUT OF PUBLIC AREAS. Law is tricky business. If youíre cruising Elfwood, and you come across a picture that is yours, within a gallery that is not yours, do not write the person on his guestbook. Instead, e-mail him. The reason for the private interaction is simple, you need to cover yourself and avoid other legal duels. There are piles of examples that can be pointed out in which an accusatory finger has been pointed on a public forum, and the resulting interaction between all quickly degenerated into ugly, hateful, and extremely harmful wars of words that include more than just the two people at the core of the argument. Inciting such a melee could not only get you banned from a site or forum, it could conceivably lead to court on the grounds of defamation or libel. After all, those are legal terms, too.

Keep courtesy in mind when contacting the person in private. Donít fly at him with insults and accusation through your e-mail, either. While your creations are your own property, and a trespass on your work is no less egregious than a trespass on your land, you still need to keep your temper. So often, people are just plain uninformed of the proper laws, limits, and rights afforded to all intellectual property. This certainly includes artists. For example, it is a common misconception that if a person drew a picture from another without tracing, it is the personís rightful creation. Often times, when you let the person know of the mistake he made, and ask nicely to take the work down or properly credit it, he will apologize and comply. Play the role of the educator, not the accuser, when you state your case, and you might just be met with a constructive response.

Also, give it time and be patient, especially if the other person doesnít get what they did wrong. Give him the benefit of the doubt, and explain your position in detail. Donít give him the chance to play dumb. Put all of the information out there right away. Plus, though youíre being nice, let him know that if he doesnít comply with your wishes, you will take more official action. If education doesnít compel the individual, then perhaps the threat of authority will. If youíre met with a belligerent response, then donít afford any second chances. Go to the content administrators and state your case. The point is to be sensible. Play nice, and there is less chance of there being a battle later on. If it does come to a battle, then what you had written to the other person in the past might come back as written evidence, so choose your words carefully. Also, remember to save any correspondences you receive from the person for your own records.

Now, onto part two. If you are a person who has witnessed a suspected infringement, but you are not the original artist, you have only one thing to do: write the artist or site administrator, and let him know of the infringement.

As it has already been stated, only the artist has the power to defend the copyrights to his work. Even if your heart is in the right place, you donít have the authority to do that job for anyone but yourself. If that means that the artist takes no action after you inform him of what youíve seen, then so be it. Your role can be only that of informant. Donít write the infringing party. Donít call attention to him on forums or chatrooms. Donít leave nasty notes to him in his guestbook. Any action you might take on the matter is essentially going to be done in the original artistís name. That means anything you say or do about the infringement could prove to be harmful to the defense of the original work. This isnít to say you canít be diligent about protecting intellectual property. If you do see galleries with several infringements, or canít contact the original artist, then you can write the administrators of the site or web space and let them handle it. In any event, the bottom line is that it is not your battle, so itís best that you donít join the fray.

So, there you have it. Now you have a little bit of a map to go by while traveling down the winding road of copyright law. Just remember that your most effective tools in defending your rights to copy are a cool head and an informed mind.



Robert Jones lurks around the Elfwood LiveJournal and helps run the Copyright LiveJournal.


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