A few years ago, I wrote a guest piece for Quartz on Instagram’s copyright loopholes and how they impact artists, creators, and photographers. The key point? Technology is progressing far faster than the pace of policymakers, an especially frustrating phenomenon for those in the artistic or creative fields. Four years later, I’m still finding out the hard way that it’s still very true.
I was unfortunate enough to end up on the negative side of this phenomenon recently, and I wanted to share my story so others can be more aware of copyright laws and what you can do to protect yourself as an artist sharing your work publicly on the Internet (or just a dog owner sharing adorable photos of your pup with Instagram)!
My story begins last fall, when a friend sent me a photo of a painting that a few people in Facebook’s Corgi Items Spotted group found in their local TJ Maxx:
The friend who found the image thought she recognized Chibi’s unique markings and ear shape in the painting, so passed it along to me.
As soon as I saw the painting, I thought, “Wow, that looks just like a photo I took of Chibi.” The original photograph is below, shared to my blog post from May 2015 about Olloclip’s new fish eye lens for your iPhone:
Here is the painting overlaid on top of the photograph of Chibi. See any similarities?
I did a quick Google Search and found that the painting of what looked like Chibi was being sold at TJ Maxx and was attributed to a professional artist.
The artist was selling the painting on their website and had apparently licensed it out to be sold en masse at a bunch of different retailers. I found the painting available for purchase at Walmart, Art.com, and Amazon.
After diving into the rabbit hole of the Internet, I discovered this was not the only image resembling photographs I’d taken being sold without permission. This photo I took of Geordi and Chibi from Corgi Beach Day in 2015 was transformed by another manufacturer into a painting and is being sold on Wayfair.com for a whopping $166:
Now, what can you do about this as a photographer?
I reached out to an attorney who specializes in copyright law. They sent letters to each retailer and the artist, asking for an apology and a payment of damages since my photography of Kokoro and Chibi is part of my income and business. Most of the retailers did not respond, but we did get a letter back from the artist’s lawyers. To my surprise, they stated that:
- The artist denies that they infringed upon my copyright
- I cannot copyright what a dog or Corgi looks like through a fisheye lens
- I need to issue a written apology to the artist
I was confused. My photograph was live on my website in 2015 and is a top image result when you search “Corgi Fisheye” in Google, and the painting was shared in 2017. To me, it seemed like the artist found my photo on the Internet and used it as a basis for their painting, resulting in artwork that looks so much like Chibi that others were able to recognize her and send the image my way. Wasn’t it pretty apparent, especially when compared side-by-side, that the painting was a copy of my photograph?
After much back and forth between our lawyers, the artist reached out to me directly. They wrote:
I try to give people the benefit of the doubt. I really tried to think of a situation where these stock images photoshopped together would end up looking exactly like a photograph I took of Chibi. Coincidences do happen, I guess. But knowing the ins and outs of Photoshop and how easy it is to manipulate photos to look like another, I was still concerned. I opened the metadata of the artist’s composited photo and it showed the file was modified two days after we sent them our demand letter. Not a smoking gun, but still fishy.
Looking at the three images side by side, I asked them to explain how the markings on her painting are a carbon copy of my photograph, down to the placement of Chibi’s eyebrows and whiskers, details that are missing from her composited stock photo. Yet, they insisted their painting looks more like the composited image than my photograph.
After months of back and forth, the artist continues to deny that their painting was a copy of my photograph.
So, I reached a dead end. With the copyright laws we currently have in place, I would have to prove actual damages inflicted by this copyright infringement in order to successfully take them to court. Because I did not copyright each of my photographs individually, which is a timely and costly process, I am legally not in a good position to get anything out of this.
Which brings me to why I’m writing about this story today. How can Instagrammers and photographers who rely on the Internet to spread awareness of their work protect themselves from potential copyright infringement by others?
Copyright your work!
Seriously consider taking the time to register copyright ownership of your work if you have the financial means to, especially if there are certain images that are more popular than others. LegalZoom provides a very simple explanation of this process:
• Registration creates a record of your copyright ownership.
• You must register your copyright before you can file a lawsuit for copyright infringement.
• If you register your copyright within three months of publication of your photo or before a copyright infringement occurs, you can recover additional monetary damages and attorneys fees in a copyright infringement lawsuit. These damages, called statutory damages, allow you to recover money without having to prove the amount of your financial loss or the amount of profit an infringer earned.
Because I did not have a copyright registration on that specific photo of Chibi, I am not eligible for statutory damages which could easily have been a 6-figure amount. In my case, I would have to prove that it was indeed a copy without permission of my photo and that I lost income specifically from her licensing out that painting since I lost the opportunity to license it out myself.
Registering a copyright with the U.S. Copyright Office consists of a completed application form, a filing fee of $35-55, and submitting a nonrefundable copy of your work. It also takes time for the Copyright Office to process each registration, but this process can be worth it in the long run.
Understand the risks and your rights
Everyone needs to understand the position you put yourself in by shaing content on the Internet. It means others will inevitably see it, use it, manipulate it in their own creative endeavors. You can add watermarks (like I did to my photo of Chibi), but of course those can be easily edited out if others so choose. You can report copyright infringement on many social media platforms — Instagram, for example, is usually great at taking down photos when need be.
However, when it comes to others making money off work derived from your artwork, you’ll find that copyright laws have many grey areas.
For me, it isn’t financially realistic to copyright every photo of mine that I share on my website or Instagram. Having posted about 800 photos to my feed since 2014, it would have cost me $44k to copyright every photo – and that doesn’t even include the images shared on my blog.
As of now, there are no “blanket” copyrights that you can apply to your body of work shared across different platforms, which would be useful for automatically protecting yourself as an artist who puts out tons of content every year. Hopefully, one day policymakers will find a way to catch up to the speed of technology and better protect the rights of creatives who use the Internet to house their portfolios.
In the meantime, platforms have been doing the best they can to fight against copyright infringement. In February 2018, Google removed the “View Image” button in their image search results in an attempt to reduce unauthorized usage of photographers’ images. Instagram also makes it very hard to directly download work off their site.
If you’re an artist, please just ask permission when you are using someone’s photograph as inspiration! It’s always better to just ask than go ahead and derive a piece of artwork thinking it might just be okay.
Whether you’re a photographer, painter, or digital artist, we all dedicate tons of time and put our hearts and souls into our content, so we should all respect each others’ work.
Thank you @thegracechon for letting me know about group copyright registration with the US Copyright Office. You can upload thumbnails of up to 750 photos at a time to register a set of work, rather than individually registering as I mentioned above. The filing fee is just $55 for a set of published photographs. Take the time and do it!