What To Do if Someone Steals Your Art Online

That cute cat photo you want to share with your Facebook friends? The inspirational Pinterest post your friend sent you? Or the photograph of the perfect sunset you want to use on your blog? Beware before you share. Any one of them could potentially get you in copyright trouble. An artist who finds that their original art has been used on the internet without their permission can write to the infringer to inform them of the cost to license it.

According to New York intellectual property attorney Amy Lehman, there is no one-size-fits-all answer for artists who want to take action when their work has been copied on the internet. “They can file a takedown notice with the server, or whoever is supporting the images or the websites,” Lehman, the director of legal services for the nonprofit Volunteer Lawyers for the Arts (VLA), says.

“If somebody finds, on YouTube, a film that includes some of their own footage or images, they write to YouTube and file a takedown notice. YouTube will investigate. If the complaining artist has their material copyrighted, they can include a copy of their copyright notice to demonstrate ownership. But the investigation won’t always result in the material being permanently taken down. It depends on all kinds of factors.”

Protecting Your Art Online

“Many authors don’t like the idea of their books being available in e-book form,” says Dale Cendali, an intellectual property lawyer at Kirkland & Ellis in New York City. Cendali, whose clients have included J.K. Rowling and Twentieth Century Fox, says e-books carry concerns beyond tactile enjoyment.

“Once you make anything available digitally, there’s the potential for serial infringement. Illegal downloading is hurting the music industry. If e-books become more prevalent, this is going to become more of a problem.”

R. Bruce Rich, an intellectual property lawyer and co-author of “The Business & Legal Guide to Online-Internet Law,” says, “[These legal issues] go back to when the publisher got the right to publish in book form and what those rights encompass since many of these contracts predate the electronic age,” he says.

“The internet did not change intellectual property law,” says Jorge Espinosa, intellectual property attorney at Espinosa Trueba Martinez in Miami. “It just pumped it up and made it more complicated by making the transfer of information and creative work so much faster and so much more of a thoughtless process.”

The basic rule of thumb with copyright law, says solo practitioner Michael C. Cesarano, based in Coconut Grove, is to assume a copyright exists.

“Unless you have something in writing that says you can do it, the law says you’re not supposed to,” he says. “I would definitely check every photograph that I got — or every sound clip, or whatever it happens to be that you’re posting.”

That may be as simple as going to the website the image — or music or text — came from, he says, to see if the copyright owner allows fair use, either freely or on a limited basis.

In fact, many companies and business owners encourage sharing links to copyrighted news articles. Social media sharing is, effectively, digital word of mouth and user-generated content. The more viral, the better.

But a photographer—or a company that sells stock photos—might not feel the same, especially if you’re using it on a small business site or for other commercial purposes.

“There are companies out there whose entire business model is to scan the internet for digital fingerprints of photos that are protected by copyright that they have obtained the right to enforce from the original creator of the photo,” Espinosa says. “And they contact you and demand a royalty payment, a settlement payment to avoid litigation, and a takedown.”

Discovering Online Art Theft

Artists may find their stolen art being used online in a variety of ways. The most common methods are using reverse image search tools, social media posts without attribution, and others alerting the artist to the use. Some common red flags that signal unauthorized use include removing or cropping out watermarks, reusing images on commercial sites, or platforms re-sharing artwork without giving credit.

Artists need to monitor for unauthorized use of their work to protect their reputations. People will see their work used in ways that may not align with their standards. Monitoring can help identify these uses and facilitate their removal. Monitoring also helps protect the art’s value. Otherwise, there is the risk of devaluation of the license. Consistent monitoring can also help to identify repeated or systematic infringement.

Online tools and professional services can automate the monitoring process for artists. Many use digital fingerprinting to scan the internet for usage. Another option is to set up alerts for names, brands, and image titles.

When an infringement is found, it’s essential to document it. Start by taking screenshots with timestamps of the website or platform where the art appears. Record the URL and platform details. It’s crucial to document the infringing material before it’s removed. Put all of this information together, along with documentation of the original artwork’s creation and the date it was created.

The Power of a DMCA Takedown Notice

Enacted in 1998, the Digital Millennium Copyright Act (DMCA) covers copyright infringement on the Internet. The act allows people to ask website administrators to remove online content without resorting to litigation. While the material does not need to be registered, it must be eligible for copyright protection to file a takedown notice. However, a counter-notice to the takedown request can be filed, and the material can be reposted.

An artist can register their original work for copyright as soon as it is fixed in a tangible medium, regardless of any unauthorized derivative works they may have created. They don’t have to register the work immediately after it’s created, and even if it’s registered, it still doesn’t prevent someone from taking the work. “People take, right? But you can’t sue them over it unless you’ve registered with the copyright office,” says Lehman.

If you’re concerned someone may infringe upon your original work, registering with the copyright office provides additional legal benefits, such as the ability to sue for statutory damages and attorney’s fees. You do not need a lawyer to register: You can go to the U.S. Copyright Office’s website and follow the instructions. To further make it more difficult for someone to infringe on your copyright, you can place a watermark, your name, and the date of the copyright on your work.

How To Send a Cease and Desist Letter

A cease and desist letter is a common initial step in addressing someone infringing on your intellectual property rights. After reaching out informally to the art thieves, an artist can send a letter formally establishing notice of willful infringement claims. The letter should include key information about the situation:

• Your identity
• Description of the art
• Proof of ownership
• Details about the infringement
• Clear demand for action (remove, stop using, or pay licensing fees)
• Deadline for compliance
• Notice that failure to comply may lead to legal action

Maintain professionalism and avoid emotional language. Stick to verifiable facts. Avoid threatening and aggressive language.

Receiving a Cease and Desist Letter

It’s your responsibility to make sure you have the right to use it in the way you intend, Cesarano cautions.

Otherwise, the owner might send you a takedown notice, asking you to remove the copyrighted material in question. Ignoring the notice or refusing to comply could lead to more serious action, including a lawsuit. And, even though that’s not a criminal action, Espinosa says, “a registered-copyright lawsuit could have some fairly sharp teeth.

If the court determines that copyright infringement was willful, it could impose statutory damages of up to $150,000 for each copyrighted work used without permission.

“If it’s truly innocent and if it’s truly a one-time thing and it’s non-commercial, the likelihood of a large statutory damage award is very remote,” says intellectual property litigator Ury Fischer of Lott & Fischer in Coral Gables.

“Realistically, the courts will always apply the rule of reason,” he says. “The damages are not punitive. It’s not meant to teach a lesson, but to fairly address any damage caused by the infringer.”

Registering Your Copyright for Stronger Protection

Filing to register a copyright is an essential proactive step in protecting intellectual property rights. It is required before filing a copyright infringement lawsuit. Doing so makes it possible to pursue statutory damages and attorney’s fees. The filing creates a public record, essentially putting everyone on notice that the artist owns the artwork.

An artist can file their registration at any point after creation. However, earlier registration offers better protection. To register, an artist can use the U.S. Copyright Office’s online registration portal. Upload a copy of the work, pay the filing fee, and receive a certification of registration.

There are some common misconceptions about copyright registration. While copyright protections exist automatically, registration is still essential. Posting artwork online does not count as registering it. In addition, filing through a registration service or third party doesn’t always work. It’s essential to use an attorney or reputable service to ensure the artist retains copyright ownership of their art.

Copyright Protection in Action

A recent high-profile copyright infringement lawsuit concerned Google’s right to reproduce copyrighted material online and illustrates the significant stakes of these claims.

In October 2005, The Association of American Publishers organized a copyright protection suit against Google on behalf of five major U.S.-based book publishers. At issue was Google Book Search (GBS), a searchable database and search engine of books in print at several prominent universities.

“This case [sought] not damages but a declaration by the court that Google commits infringement by scanning entire copyrighted works without permission,” explains Cendali. “Google argues that it’s not making entire works available, only searchable for information-gathering purposes.”

By making only portions of the works available, Google claimed its actions fell under the “fair use” exception to copyright infringement. “The question was,” says Cendali, “do they have the right to copy it unilaterally, or should they have to go to the copyright owners to strike a deal?”

Rich says work in an e-book deserves equal protection and exclusive rights. “It still retains copyright,” he says. Cendali adds, “It was clear from previous case law that… the right to permit someone to publish their book as an e-book is a right that the copyright holder has. The question was whether what Google is doing is infringing that right or not.”

In April 2014, after years of negotiation between the parties, followed by litigation in the U.S. District Court for the Southern District of New York, the 2nd Circuit Court of Appeals ruled in Google’s favor on the question of fair use.

Suing for Copyright Infringement

According to Lehman, pursuing a lawsuit can be difficult if there are no proven damages. “If you’ve registered your work and you can prove that it was willful infringement, you can then acquire statutory damages,” she says.

However, proving infringement and willful infringement can be tricky. “Let’s say you have evidence that you contacted the person,” she continues. “If you’ve approached them and said, ‘You’re infringing, please take it down,’ and they don’t do that, from then on, you have your evidence that they’re intentionally infringing.”

Lehman believes the courts don’t always get it right at first. For example, VLA filed an amicus brief in support of a case filed in the Eastern District of Virginia, Brammer v. Violent Hues Productions. At issue? A film festival made unlicensed use of an artist’s stock photograph on their website to demonstrate their location. The Fourth Circuit decided to reverse the district court’s decision, which Lehman says clearly “didn’t understand the fair use standard,” which permits the use of copyrighted work in certain situations, such as criticism or parody.

“The district court made its decision based on what it said was precedent in their district, except that those cases were also decided badly,” says Lehman. “In VLA’s advocacy, we can try to help that outcome come out more in favor of artists.”

“They’ll send you a bill for much more than it would have cost you to license it,” Lehman says. “And there’s really not much of a defense that you have at that point. You either have to pay the license fee or hire a lawyer. And, generally speaking, hiring a lawyer is going to cost you a lot more than paying the license.”

Consulting with an Intellectual Property Lawyer

Artists should consider hiring an intellectual property attorney for several reasons. A lawyer can assist when the infringement becomes repeated, affecting the artist’s income. An attorney can also assist with complex licensing agreements or negotiations. In some situations, the opposing party may file a counter-notice or lawsuit. A lawyer can represent the artist during litigation.

When meeting with a lawyer, they will evaluate the strength of the copyright claim. From there, they will draft and send cease-and-desist letters. A lawyer will also help their client navigate DMCA procedures. This is essential for helping clients advocate for their rights and pursue full compensation.

Before infringement takes place, a lawyer can help artists proactively protect themselves. This includes registering copyrights, creating licensing agreements, and developing policies for online sharing.

Find Legal Guidance

Copyright issues move quickly in the digital world, but the legal principles remain the same. Creators maintain rights over their work, and those rights do not disappear simply because something is easy to copy or share. If you are an author seeking to secure copyright protections for your creative work, reach out to an intellectual property lawyer for further guidance and legal advice.