Mark's article discusses the "circumstantial evidence test" for infringement, and three elements of the test: Access to protected work; Copying protected work; Creating "substantially similar" work to protected work.
My blog post here features two case studies of an artist's original artwork -- compared to artwork that is "substantially similar" but credited to another artist.
Original Art by Gemma Correll. https://www.gemmacorrell.com/
Gemma has done several versions of her Reward/Self Care stickers
Imitation art by Jeremy Nguyen???
In August 2017, The New Yorker feature "Daily Shouts" was a series of "Freelance Achievement Stickers" attributed to artist Jeremy Nguyen.
These images appeared on The New Yorker Facebook page on 8.7.17. Several fans of Gemma Correll commented on the similarity of Jeremy's art to Gemma's pre-existing works and linked to Gemma's sticker series. My own comment focused on how Nguyen's stickers imitated the style, font and subject matter of Gemma's work. The New Yorker never replied to any of the comments in the feed. As far as I know, Gemma never made a public reply... but she did post this link to her stickers on her Facebook page that same day. https://buyolympia.com/Item/gemma-correll-i-wish-i-still-got-stickers
One comment felt Nguyen's art also imitated work by artist Hannah Daisy.
This is just one case study of how hard it can be to determine that art is original, when it can also be seen as "inspired by"... or "substantially similar" to another artist's work. Gemma Correll is an established artist... with an agent, published books and works, and a world-wide following. I wasn't the only fan who felt Gemma had been ripped off. Take a look at the link and the art by Jeremy below. What do you think??
"Freelance Achievement Stickers" art by Jeremy Nguyen in 8.7.17 "Daily Shouts" in The New Yorker (3 sample images below)
What would you do if your art was being imitated????
Each art theft case is unique. I'm not an attorney, but I'm a passionate advocate for artist rights. That includes getting artists and fans educated about protecting IP. Each case study of art theft is a chance to learn more about vital artist rights.
Recent cases of art imitation prompted me to check in with Intellectual Property (IP) attorney Jonathan Tobin at Counsel for Creators. I learned about Jonathan from an indie artist pal, and I've subscribed to his firm's "Creators Legal Program" for about two years. With this service, I pay a monthly fee, and can schedule phone appointment to get legal advice/opinions on art theft issues (among other benefits).
You can read more about the Creators Legal Program and the services offered here:
The thoughts I'm sharing in this post aren't legal advice.
My comments here are points of discussion I've had with indie artists trying to protect their rights.. and with lawyer Jonathan and his tips on action artists can take to protect themselves.
When you start to look closely at cases of "similar" artwork.... proving an art theft case can get slippery. You have to start with original images where the artist has registered their copyright. There really isn't a legal leg to stand on without that registration certificate.
The strongest cases for art theft seem to be where the original work is traced or flipped. The exactness of the similarities matters. Cases where the subject matter or poses of the subject are similar are more challenging to make a legal case for as art theft. This doesn't absolve the "imitation" artist from some shady activity. It just means that there's still lots of legal gray area when it comes to inspiration, imitation, and infringement.
For example.. in the case above of the reward/achievement stickers, I see a case where Gemma's pre-existing art is being imitated/infringed on by Jeremy.
Another look at the example might see both Gemma and Jeremy's work as being influenced by the font and palette of the old "Schoolhouse Rock" videos. Yet another view might see images that are described as stickers... but also similar to boy/girl scout badges.
If a freelance artist got an assignment to illustrate "merit badges for Freelance Achievement done in the style of Schoolhouse Rock" it becomes easy to tread on many toes. Especially if the client is really pushing for an imitation of something they already like.. but perhaps can't afford to license.. or to hire the original artist.
The best advice for artists -- for your own work and with assignments -- is to make sure your work is your own. Respect the work of your fellow artists. Original, unique art will be far removed from any source material you may be influenced/inspired by/assigned. Make sure your work inspires confidence, not comparisons.
The strongest protection of IP comes when you INNOVATE.. not imitate.
Why enter in to a "substantially similar" swamp? Artists can avoid it by being exceptional.
Many art subjects are so popular and generic they are particularly difficult to render in unique ways: unicorns, mermaids, fairies.
The artists who build a fan base with these subjects create identifiable versions based on their own vision. Fans are attracted to the new and unique. Educating fans to appreciate the value in this talent helps secure a supportive fan base.
Protecting IP is an ongoing challenge for artists. This is especially true in the internet age. Social media thrives on image sharing. Sadly, the framework of social media was not constructed with artists rights as the priority they should be. As a result, there is a culture online of sharing images without credits for the creators.
Posting images online puts artists at risk for art theft. Can every case of art theft be stopped? Sadly, no. But the more cases artists share.. the more they reinforce the value of their art.. and the more fans get educated and involved in protecting artists.
It's not enough to "like" an artist -- a real fan is invested!
Art life is entrepreneur life. Art schools are aware of this. Required courses include Copyright basics. Online sources.. from art schools, to tutorials, to websites like these.. offer education for artists at all career levels.
This handy info graphic by artist Lili Chin explains Copyright Basics.. and is available as a free download on her link:https://www.doggiedrawings.net/copyright-101
1) BUDGET FOR LEGAL PROTECTIONS
Schools, workshops, conventions and artist peer groups are ideal places to give artists resources to learn about IP. Protecting IP is priceless.. not expensive. Gas is expensive, but you budget for it to drive the car. Food is expensive, but you have to eat.
Preparing for life as an indie artist means budgeting your legal needs.
Make a budget to register your copyrights.
You can't afford to not to.
You cannot pursue legal action against infringers unless you have a copyright registration for your work. International cases are even more complicated.
Many indie artists are using social media to educate their fans about art theft issues. It's so exhausting and expensive for indie artists to fight back against the onslaught of online art theft. Educated fans are the ones who report art theft to artists. Use the help of these fans. Don't chase after every case... but do use every case to reinforce how vital fan support is.
Artist Anna-Maria Jung http://www.annamariajung.com/
is often the victim of art theft. She posts warnings to let the counterfeiters .. and her fans .. know that art theft is not invisible. Art theft is a reminder for fans to be sure they are supporting artists: purchase directly from the artist; purchase from the artist's approved sources; report art theft to the artist.
Artists lose money to counterfeiters. Some sales to these thieves are inevitable. Use these loses to reach out to fans... educate them.. and appreciate their support.
Sample post from Anna-Maria
The Art of Anna-Maria Jung
If you see a "Firefly Fans", or "Totoro Fans" or some other "Fan" page on Facebook selling shirts - Chances are these designs are STOLEN - Either from independent artists or just ripped off images of official merchandise.
Artist Liana Hee https://www.etsy.com/shop/LianaHee
is especially known for her personal works of charming mermaid art. Her unique interpretations of this popular subject matter has gained her a devoted following. Her art is available online. Like many successful artists, she has been targeted for imitation.
Innovative artists like Liana are the leaders. Leaders will always be ahead of their replicators.
When someone imitates an innovator's art and puts their own name on it... even if it's not to make money on merchandise... it's still a theft. Turning these thefts into teachable moments helps expose the wrong-doing. Copying figure/subject poses may not be a copyright infringement... but seizing on the style, character and whimsical tone of an innovators work feels criminal.
Art with impact shines on its own merit.
A recent popular Buzzfeed post exploited Liana's work.. and credited it to another artist.
(info graphic below by Liana Hee).
Liana's fans appreciate the value of her IP and were quick to respond on the Buzzfeed Quiz comments. My comment was just one:
Dear Buzzfeed Quiz... art here is ripped off from original artist The Art of Liana Hee. Credited artist "adekvat" on this post has produced derivative, substantially similar works based on Copyright protected IP of original artist Liana Hee. Unauthorized use of online images is a chronic problem in the internet age. Art fans.. and consumers... are calling out art theft. Social media sharing includes taking notice of companies that infringe on creative rights or promote it by condoning it. Artist rights protect art life. We all enjoy image sharing... we all have the responsibility to respect the artists who make that possible.
Calling out companies can be a mixed bag. Personally, I feel it's worth it. The feedback from educated customers helps raise awareness for the companies and others visiting the post.
Being "inspired" by another artist should be a take-off point... not a rip-off exercise.
If you're a fan... speak up.
If you're an artist.. give your fans the visual tools and vocabulary to help them help you.