leareth-svraiel:
Recently,
I’ve been seeing a lot of my artist friends complain about people reposting
their art on the internet. Not just complain, but rant, plead, and beg
reposters that reposting their art is disrespectful, that it hurts the artist,
and please, please will people stop reposting
their art without permission?
Dear
artists: you don’t need to beg. You created art, you own the copyright in it.
That
gives you power.
THE BASICS
Disclaimer 1: I am not getting into the
issue of fanworks and the interplay of original works/derivative works. This
post is just sticking with the basics: you, an artist, created an artistic work
through your own effort, which you own the copyright for, and someone has
reposted it in its entirety without your permission to their own website or
social media account.
Disclaimer 2: For simplicity’s sake, this
post is just talking about copyright. Issues like moral rights and Creative
Commons won’t come into this, those are whole subjects in themselves, and this
post is long enough as it is.
How do I get copyright? Automatically. There is no
need to register anything, no need to get a lawyer to sign documents, no need
to pay any fees, no need post it to yourself or make a sacrifice to Zuul, NONE
OF THAT IS NECESSARY(1). Copyright arises automatically the moment you express
your idea in material form, ie., the
moment you put pen to paper, Photoshop brush to white space, take a photograph,
etc. You make it, boom, you automatically own the copyright in it(2).
(1)
Yes, the U.S. has a copyright registration system but it’s there as an option to access certain legal extras under U.S.
law. It is not a condition to have
copyright in the first place.
(2) There are exceptions to the “you make it, you own it” rule, the most common
one being when you are employed to make the art (eg., you’re employed in an
animation studio drawing storyboards, all the storyboards you draw belong to
the studio). Being employed to make art is NOT the same as being commissioned
as a freelancer to make art: if you are commissioned as a freelancer to make
art, at default what you create will be copyright to you, and your client gets
a permission to use that art for the purpose they commissioned it. If the
client wants to own the copyright, they’ll need a written document signed by
you that transfers copyright from you to them. And yes, professional artists do
charge more for that transfer.
Is my copyright recognised in other
countries?
Yes, provided your country and the other country are members of the Berne Convention for the
Protection of Literary and Artistic Works. Under this treaty, all signatory
countries agree to recognise copyrights from other signatory countries. Since
the Berne Convention currently has 172
signatory countries, in the vast majority of cases when someone else uses
your work online, they’re doing so from a country where your copyright is
recognised and can be enforced in that country’s legal system.
What does it mean to have a copyright? As a copyright owner, you
have exclusive rights to deal with your work. The precise rights may vary
depending on the type of work and what jurisdiction you’re in, but
fundamentally in the context of reposting they are:
the
right to make reproductions of your art (ie., make copies); and
the
right to communicate your art (eg., transmit it to or through a website).
These
rights are exclusive to you meaning you are the only person who can copy and
transmit your art. Anyone who wants to make copies of your art or upload it
to a website will need your permission to do so (and you’d be within your
rights to charge money for that permission if you wanted), otherwise they risk
infringing your copyright. Which brings us to the next part.
PERMISSION VS. INFRINGEMENT
What’s a licence? A licence is a permission
from you to another party that lets that other party use your art. For example,
if you upload your art to Tumblr/Twitter/Facebook, you have granted Tumblr/Twitter/Facebook
a licence to reproduce, display, and host your art within the
Tumblr/Twitter/Facebook system. (Want to know the exact wording of that
licence? It’s set out in the terms and conditions you agreed to when creating
your Tumblr/Twitter/Facebook account).
That
permission does not extend to every person, mutant, and unicorn to use your
art. If you upload art to Tumblr/Twitter/FB to display, you’ve given a
permission to that website, and no
one else. Now, Tumblr/Twitter/FB allows other Tumblr/Twitter/FB users to
share/reblog/retweet things from your page to their page, and that’s fine, they
can do that because it’s a function of the website’s system which you’ve agreed
to operate in. That is completely different to a person downloading your art
from your page and reuploading it to their own account either on the same
website or a completely different website for hits and likes, ie., reposting, ie., likely copyright infringement.
What is copyright infringement? Copyright infringement is
when someone uses (eg., copies) all or a substantial part of your art without
your permission, and when no copyright exception applies.
Internet
defence myth: “The artist put their art on the internet, that’s permission for
anyone to use it!” – NO. The artist
put their art on a particular place on
the internet (ie., their own website, own Tumblr, own Pixv) on their terms. That is not permission for
anyone on the internet to download and use their art. If you find some art
online that you really like and want to use, contact the artist and ask them.
Internet
defence myth: “I changed 10% therefore it’s okay!” – NO. “Substantial part” does not work like that, it’s not about how
much you’ve copied, it’s about what.
If what you’ve copied is the key, distinct, or essential part of the work, that
will be a substantial part even if it’s only 1% of the whole picture. Think of
“The Scream” by Edvard Munch: the screaming face is, proportionally, a very
small part of the larger picture, but it is the most recognisable and
distinctive part. Now, what is and is not a substantial part gets very
subjective, but in the context of reposting where a user reposts a whole
picture, or crops the edges to remove a watermark/copyright notice/artist credit
but keep the pretty art that caught their eye in the first place? That is
clearly a substantial part amounting to copyright infringement (and in some
jurisdictions, an infringement of laws regarding artist attribution and/or
metadata).
What’s a copyright exception? An exception to copyright is
a situation where the use of your art meets certain criteria that the law says
using art without permission is allowed.
Internet
defence myth: “It’s fair use!” – Are you in the United States/South
Korea/Israel/other fair use country? If so, then sure, let’s talk fair use. If you’re
not in a country with fair use, then you do
not get to claim fair use. No fair use for you, do not pass go, do not
collect $200.
The
majority of jurisdictions in the world do not have fair use. I’m not going to
go into every country’s variation, but many (e.g., the U.K., Canada, Australia) will have fair dealing which is a very different creature to fair use. Basically
with fair dealing, in order to not be an infringement of copyright, the use of
an artwork without the copyright owner’s permission must be for a specific
purpose, such as parody or satire, or criticism or review, as well as be fair. If the use of an artwork is not
for that specific purpose, it is an infringement of copyright. Reposting art
for hits and likes or aesthetics without any serious attempt at comment?
Definitely not going to get the fair dealing exception.
For
those in the U.S.A.: yes, you get fair use, but it’s a defence against
copyright infringement, not a get out of jail free card. The number of times I
see people slapping “this is fair use!” on things that are clearly not going to
pass the test is ridiculous, and there’s a line of thinking around the internet
that just invoking the words “fair use” summons a magic shield to ward off any
legal action. It doesn’t do that. Yes, you can claim that what you’ve done with copyright material is fair use, but a copyright owner is free to
disagree with your claim and, if they think they have a case, take legal action
against you at which point the fair use argument will be tested in court (as
the Star
Trek Axanar guys found out the hard way – spoiler, judge said no fair use).
Now, the fair use debate is huge and ongoing, and this is not the place for it,
I’m just focusing on reposting. And in the vast majority of cases where art is
reposted in its entirety for hits and likes with zero attempt at critique or
parody, it’s likely that fair use won’t apply.
Internet
defence myth: “Reposting is okay because it gives the artist publicity/exposure!”
– NO. “Giving publicity/exposure” is
not an exception for copyright infringement, and helpful as publicity/exposure
is, it doesn’t pay the bills. Creating art is work, and just as I get paid to do my work, so should professional
artists get paid for their work.
There are plenty of think pieces
and articles
and comics on how harmful
it is for the creative sector to be expected to produce high quality work “for
exposure”. And when reposting is done without attribution or credit or a link
back to the original artist/source, then the exposure “argument” is utterly
worthless (and may also be an infringement of moral rights where applicable).
Internet
defence myth: “I credited the artist therefore it’s okay!” - NO. Some artists may be
all right if you repost with credit. Other artists are not okay with it. Check
the artist’s website/statement/permissions, don’t just assume that they’re
going to be okay with credit. As far as law goes, the fact that you credited
the artists means nothing: you reposted the art without permission where no
copyright exception applies, therefore you infringed copyright and the artist
copyright owner can act on that.
Internet
defence myth: “I’m not making any money I didn’t mean any harm therefore it’s
ok!” - NO. As far as liability for
infringement goes, none of that matters: you reposted art without permission
where no exception applies, you infringed copyright. The fact that no money was
made may be taken into account in
terms of damages or remedies, but at the end of the day, copyright was
infringed, and the artist can hold you liable for it.
WHAT CAN I DO WHEN SOMEONE REPOSTS MY
ART?
You
can take legal action, which yes, comes with costs, time, effort, and stress.
That being said, as a copyright owner, you do
have that legal right, and if your art is being infringed in a way that’s earning
money for the infringer, court action would be worth considering. Get legal
advice first.
In
the majority of cases where you don’t want to get a lawyer but do want a repost
of your art taken down, you have two options: contact the reposter and get them
to take it down, or contact the website hosting the reposted art and get the
website to take it down.
Contacting the reposter: A lot of artists seem to
take the gentle, friendly, almost apologetic “could you please?” approach to
this. That’s up to you, but I will suggest that although you should certainly
be polite and courteous, you shouldn’t be afraid to be firm. (Do NOT be
aggressive/insulting/rant in all-caps). You’re the copyright owner, you’re the
one with the exclusive rights, you’re the one who can hold the reposter legally
liable for the infringement. Send a calm, professionally-toned message/email
stating that:
you
are the artist,
you
own copyright in the named images (provide link to images on your official
website/blog);
that
you did not give permission for the person to reproduce the image and reupload
it (list specific HTML links to where the infringing images are located);
that
you request that the images be immediately deleted, and/or a new repost be made
with credit, and/or an apology;
that
if no action is taken or you don’t receive a response, you reserve your rights
to further legal action.
Most
decent people would, in response to such a letter especially from an artist
they admire, respond and apologise and do as requested, hopefully having
learned a good lesson. But let’s say you’re dealing with someone who doesn’t
care, who sends back a ranty message with <insert>Internet Defence Myth</insert>
and that you should be grateful that
they like your work. What do you do then?
Contact the hosting website:
Almost every
social networking and filehosting site, certainly all the big-name ones like
Facebook/YouTube/Tumblr/Twitter/Instagram/etc., have notice and takedown
procedures built into their systems. These are methods by which copyright
owners can send a notice to the website telling them that someone on their site
is infringing their copyright, and the website will remove that infringing material.
The
exact procedures used by Facebook/Tumblr/Twitter/etc., and places like
RedBubble/Society6/Etsy/etc., vary. Some make you click through and fill in a
whole bunch of form fields, some ask you to send an email to a specific
address. Whatever procedure, the majority of these websites are based in the
U.S., meaning that the procedure meets the requirements of the U.S. Digital
Millennium Copyright Act (DCMA). Essentially, the DCMA grants websites immunity
under U.S. law from infringement actions provided that they have and act on certain
procedures regarding infringements on their website. The notice and takedown
procedure is part of this procedure.
Even
if you yourself and/or the reposter are not in the U.S., if you want the
website to take down the repost you will have to go through the DCMA form. Importantly,
when you go through the process there will not be someone at the website’s
offices making a legal judgment on whether or not a repost infringes copyright;
all that matters is that you, the copyright owner, have sent in a correctly
filled form/letter stating that the website is hosting material that infringes
your copyright.
Second
important point: whether you file a notice through a website’s reporting form
or send in an email, that notice/email will very likely be shared with the
reposter. As the DCMA process requires that you include your full name and
contact details, this means your personal details will likely be given to the
reposter. If you’re comfortable with doing this you should do so, however some artists
understandably don’t want that personal information sent to a disrespectful
reposter. While I certainly don’t advise making up completely false ID
information to file legal notices (amongst other things, it’ll give the
infringing reposter reason to file a counter-notice, see below), it may be
worth using instead of your full legal name, the online handle your
art is known by, your secondary email, a P.O. Box address, or try generalising
your address to a city, state/province and country. If this approach is
rejected by the form, you’ll just have to fill in your contact details properly.
If you’re a professional artist with an agent or lawyer or other authorised
representative, that’s easier: you can name your representative as a contact
instead.
Links to major social network notice and
takedown forms
Facebook: Report A
Violation or Infringement of Your Rights. Form-fill notice. You do not need
a FB account to file a notice.
What
right is being violated or infringed? Check Copyright then (presuming you are reporting an actual image, and
not someone using your idea or style which can’t be protected by copyright) Continue with your copyright report
Copyright
Report Form: Click I found content which
I believe violates my copyright then Please
click here to continue with a copyright report
Contact
information. Fill in all the fields, and include direct links to the infringing
material on Facebook, as well as a link to the image as it appears on your
official website/blog.
Click
Yes at the bottom then enter your
name before hitting Send.
Twitter/Vine/Periscope: Report
copyright infringement. Form-fill notice. Note that it requires a Twitter
account, and you have to be logged into Twitter to file a notice, so the notice
will be linked to your account. Note also that Twitter says that they will
send a copy of all DCMA notices to Lumen for transparency (with your
contact information redacted).
Tell
us about yourself: Click I am the
copyright owner. This opens more form fields below.
Contact
information: fill this all in.
About
platform of infringing material: Click Twitter/Vine/Periscope
as appropriate.
About
your copyrighted work: Give the title of your original work and a link to your
official website/blog where the original image can be viewed.
About
the infringing material: Click Tweet/Moment/Profile
image as appropriate. This will open another form field for you to give the
direct link to the infringing Tweet/Moment/Profile. There is also a form field
for you to describe how your image is being infringed (you can say
“[username]’s Tweet has reproduced my copyright image without my permission” or
something to that effect).
Required
statements: Click both boxes, type in the exact statement as required by the
form, and type your name (try your online handle?) otherwise Twitter won’t let
you submit.
Hit
Submit.
Instagram: Copyright
Report Form. Form-fill notice, that is almost exactly the same as
Facebook’s notice form. Does not require an Instagram account to file.
Click
Continue with your copyright report
then I found content that may violate my
copyright then Please click here to
continue with your copyright report.
Contact
information. Fill in all the fields, and include direct links to the infringing
material on Instagram, as well as a link to the image as it appears on your
official website/blog.
Click
Yes at the bottom then enter your
name before hitting Send.
Tumblr: DCMA Copyright Notifications.
Form-fill, but less detailed than the ones previous. Note that Tumblr
explicitly says that the form is for external content that has been reposted on
Tumblr without your permission (eg., it was taken from your
website/Facebook/other non-Tumblr site and someone posted it to Tumblr). (They
have a separate form for stuff
you posted to your Tumblr account and another Tumblr user has reposted without
attributing you.)
URL
of infringing work or material: give the exact HTML link to the infringing
image file on Tumblr.
Source
URL for work (optional): I’m actually not sure what this is referring to
(Tumblr, you and your inexact drafting, why) but it’s an optional field, so
it’s not necessary to fill it in.
Add
more exact URLs to other infringing works if necessary.
Description
of work claimed to be infringed: Give the title of your copyrighted work, maybe
the year you created it, and a link to where it may be viewed on your official
website/blog.
Contact
information: as usual.
Click
all three of the click-boxes, and your full name (I’m not sure if typing your
online handle as a pseudonym will suffice?) and hit Submit Notification.
As
you can see, while the exact boxes and click throughs may vary, each website is
asking for the same DCMA requirements: contact details, link to infringing
material, link to your original material, legal declarations, and electronic
signature. Etsy also has a form
system, but other websites (eg., RedBubble,
Society6, eBay)
require you to send an email to their designated email address. This email has
to fit the requirements of the DCMA, and a simple Google search for “DCMA
sample notice” will turn up plenty of examples with wording you can use.
NB: The DCMA notice is a notice under U.S.
law, and thus should only be used with websites subject to U.S. jurisdiction.
If you send a notice saying “this is official notification under section 512©
of the DCMA to remove infringing material” to, say, WeChat, or the website of
the local community of artists in Canada or Singapore or France, you’ll
accomplish nothing except maybe giving someone a good laugh.
What happens when you file a notice: The website should take down
the infringing image file you have notified them about. How quick this is
depends on how well the website is managed, although the big social media sites
are fairly prompt and will typically take down infringing material in 24-48
hours.
Counter-notices: When infringing material is
removed, the reposter who put it up would be sent a notice saying that it has
been removed, and why. Under a typical website’s DCMA notice and takedown
procedure, the reposter may, at that point, send in a counter-notice saying
that the original takedown notice is incorrect (eg., that the person claiming
to be the if they truly believe they were not infringing copyright (ie., that
they had permission from you to upload the image, or their upload comes under a
copyright exception). If that happens, the website will forward the
counter-notice to you and give you a 10-14 days to come back to them with a
legal document saying that you have commenced legal action for copyright
infringement against the reposter, or a court order that prohibits the website
from reinstating the material. If you don’t get back to the website with such a
document, the website will put the material back online.
In
theory, this means that even though you have successfully filed a notice to
have an infringing repost taken down, the reposter can, if determined or
malicious enough, get it put back up. I have no idea how often counter-notices
are used, although I’ve seen some commentary that counter-notices aren’t as
common as often as people think, particularly when it’s clear that the infringer
is infringing copyright. If you do get a counter-notice, your only option to get
the infringing material taken down again and stay down is to deal with the
reposter and potentially commence legal action. Sometimes this may be worth it,
particularly if you have a good case for infringement and the reposter has
maliciously sent the counter-notice when they have clearly infringed copyright,
because the reposter may have then exposed themselves to extra penalties in a
lawsuit. Sometimes it might not be worth it. This, however, is for you yourself
to decide, and maybe get private legal advice about.
FINAL NOTE
Reposting
is incredibly frustrating for artists, especially when artists don’t even ask
people to pay them for the privilege (even though artists have every right to
if they so wished), they just want a credit or link back. Do the right thing: if
you want to repost, ask permission from the artist, make sure you include full
credits to them and links to where people who like the art can contact the
artist. It costs hardly any effort to do that, the artist will be grateful and likely
create more art for you to enjoy –
and you won’t be exposing yourself to any potential legal action.
Artists,
it’s your art, you own the copyright in it. Don’t hesitate to use that power
where necessary.
This post is general information only, not
legal advice. Anyone who needs legal advice specific to their situation should
consult a lawyer.