Saturday, July 27, 2019

Infringement case study: When creating something new becomes a battle over what is familiar UPDATED 7.28.19


The most heartbreaking infringement cases are ones like this.

 An artist creates original work, then someone rips off their images with a derivative product, but because the subject matter can be argued as "generic," it can become an expensive process (in both time and money) to have their hard work protected.

 It shouldn't be this way, but too often, it is...

For a reminder on basic copyright law protections, here are these free downloadable info-graphics ( )
created by indie artist Lili Chin ( ) in collaboration with attorney Jonathan Tobin (

Artists and fans need to be educated and pro-active about protecting indie artist Intellectual Property (IP) rights.

Copyright law enforcement is struggling to keep up with the internet age. It's so easy to click and copy and share and manipulate images. The CASE Act has passed out of committee and is now moving ahead to full vote on Senate floor. If it passes all the final steps and becomes law, it will offer an arbitration process without having to go to federal court. Cases will be determined by a panel of three copyright-savvy judges, so hopefully decisions there will be codifying these gray areas instead of adding to the confusion.

More on the CASE Act in this post on the blog:

Meanwhile, today's infringement case study comes from a closed group I follow on social media. Special thanks to artist Cherie Balowski for giving me permission to feature her case here on my blog. You can see more of her art here

The case is on-going. These situations often take time and a lot of back and forth to resolve.
However, even though it's not over yet, it's worth featuring. Infringement happens in various forms far too frequently. Each case is an important learning opportunity.

IMPORTANT CLARIFICATION/DISCLAIMER FROM AW: (I am sharing Cherie's photo and comments here with her permission. I've deleted some text and will note where other parties may be identified, since I've only been in touch with Cherie).

In July 2019, Artist Cherie Balowski posted these images, along with these comments:

"Just wanted to get your opinions. This (online store name deleted) artist, (NAME DELETED) , is selling art that was taken from my all black silhouettes and THEY are saying THEY did not. What do you think? THEY AND THEIR lawyer didn't think they looked the same, node by node, whatever the heck that means. I am soooo sick of my art being stolen, all or part of it! On the first two photos, my art is on the right hand side.

Here, the person flipped my artwork, mine is on the right. THEY added the afro puffs to the body.

Here, THEY took my silhouette and made new puffs, added flowers.
This is my image, THEY just added big round afro puffs, changed the bows. It is just too much like my art, it is my art, THEY just altered it!! Grrrr…."

End of Cherie's comments and photos

Here was my comment to her post in the thread on the forum..

Your case is painful and challenging. So sorry this happened to you. You're not alone. However, cases like this are difficult to challenge, mostly due to cost and time taken up with arguing back and forth. The strike against cases like yours is the ability to argue from their side about "generic/public domain/fair use" areas of subject matter, which of course you have rendered in your own way and should be protected by copyright rules, but crosses into enough gray area that it gets complicated. Sometimes the take-away lesson is that creating images/products that are the most distinctive, individual, unique and able to protect provide the greatest return on your investment of talent, energy and time. (sample case photo below (did not win) from artist I know and love) I thought she had a strong case that Buzzfeed ripped off her unique designs. Especially since her work predated the Buzzfeed work. But the outcome is just one example how with "generic" subject matter (in this case mermaids) the case before a judge or arbitration (or the opinion of the company/ONLINE STORE team evaluating the take down notice etc) becomes more subjective, then harder, longer, and more expensive to pursue).


You cannot register a copyright on poses or subject matter. You cannot register copyright on a shirt (the generic, utilitarian garment) -- but you can register copyright for the pattern on the material the shirt is made from. Sometimes it's knowing what to protect and how that will keep the outcome of infringement cases more satisfactory.

How can indie artists fight back from infringement cases???

It can be exhausting. Sometimes you just have to pick your battles. Resources are limited when you're an indie creator, especially time and mental/emotional fatigue. Not to mention money. 

From an education/pro-active stand point, I feel it's always worth calling out infringement and derivative works. Stating your case puts your opinion out there for consumers (and online platforms) to see. As with the mermaid art case, final decisions aren't always the ones we hope for. But each case becomes precedent. These cases help codify subjective analysis of the conflicts and make the rules and standards clearer for everyone.

Chasing after copy-cats is not a great business plan.

What protects artists most is creating work that is unique, branded, registered and promoted. Know your story and share it on your website and in your social media posts. Online shopping disconnects buyers from the creators of the images they like. Your story can connect you with your followers and your interests can open new markets for your work. Know your business plan. Build  your audience and keep them involved in your progress. Incentivize on-line followers to move from just "liking" and "sharing" your work on social media to sponsoring you via Patreon, your own online store, or direct payments via PayPal or Ko-Fi. Offer special discounts to Patreon members who join reward tiers for a minimum period of time.  Engage your on-line audience with surveys. Use process posts as reward tiers. Seeing all the steps -- and skill -- that goes into your work educates them about the value you are producing in the final image. Share your creativity with them. Let them pledge to choose from a selection of subjects or colors or medium you're already on board to use for your next project.

Participation in your process rewards their investment in your work. Share your story. Learn about them. Grow your email list with a weekly or monthly newsletter. Be interactive. Encourage them to send you photos of how they are using the items they buy from you. Some plush toy makers have fans send in photos of the plush on road trips or adventures. Talk about Instagram ready promotion opportunities!!! A "collectors gallery" helps fans feel like part of your art community, and gives them ideas how to use your merchandise. 

Yes, this is all a lot of work, but the benefits are priceless. Your loyal, committed fan base will be making the choice to buy directly from you. They will be your front lines offense calling out the copycats.

Spend your most precious resources of time, talent and energy on your fan base. They are the support you need to succeed.

Previous blog posts on fighting Art Theft:

And this excellent copyright guidelines flow chart by artist -- and web and business consultant -- Ginger Davis Allman.

 Please consult her article (via this link) for more clarity on her chart:

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