THE IMPORTANCE OF THE ARTIST'S KNOWLEDGE IN COPYRIGHT DISPUTES
In my previous journal I wrote about an art misuse case which has now been successfully resolved. It was not a pleasant experience but looking back I feel that it was very necessary. I learned a lot about dealing with art misuse and theft cases. I think the other party also learned something.
As unfortunate as it is, I think it is vital for an artist to experience a case in which their art has been stolen or misused. The party that is using copyrighted content without permission often tries to manipulate and scare the artist into submission. This is where the importance of knowledge comes into play. When the artist knows their own rights they can defend themselves better and “win” the case - unless the party that is against them is a complete asshole that won’t listen to reason.
A lot of the information that was uncovered in the YouTube art misuse case was new to me and I think I learned really useful things. I thought it would be useful to share this case with you since it contains so much useful information, some of which was new to me. In addition to this I have listed some important points that may come in handy or would be good to know.
For further insight I will explain the art misuse case to provide an example on the process of resolving such case.
The YouTube channel GamingBolt used my fanart piece “Sun and Moon” (shadeofshinon.deviantart.com/a…) without permission on their YouTube video’s thumbnail. I was informed of this by a friend of mine, without whom I probably wouldn’t even have known about this.
They linked the image to my deviantART website, but because I didn’t give a permission for the channel to use my artwork there was a violation. Why is it a violation? My policy is that my artwork is free to use in personal noncommercial and/or educational purposes. However, a YouTube video doesn’t fulfill this criteria. GamingBolt likely makes profit on their videos so therefore they were monetizing my artwork by using it as a clickbait.
I contacted the channel via PM and a regular comment, and I believe someone else also notified them of the use. Thoroughly explained why I didn’t approve of the use of my artwork and politely asked them to change the thumbnail image. I gave them a grace period to admit their ignorance and change the thumbnail, but since I never heard back from them I had to report the video. (Note that on YouTube copyright claims are a serious thing. Each claim and each video that is taken down by a copyright claim results in a strike and three strikes results in closing the channel. This is something that the YouTubers can’t take lightly.)
The video was taken down and I INSTANTLY got an email - two emails, actually - from a representative of the channel. The first email was rather chaotic and sort of apologetic. They wanted to know why I had reported the video and assumed that it was because of my artwork. The second email had a completely different tone. It included accusations and cherry picking off of different policies as well as a lot of artist copyright misconceptions. They threatened to counter the claim if I didn’t retract my claim within 24 hours. Basically they tried to scare me to submission.
I consulted my friends and followers about the case since I was not sure what to do. Thanks to the advice I got more confident and managed to keep my head cool. What I did was read their message and research their claims carefully. First one was a quote from Nintendo’s fanart policy that states that by drawing fanart the fanartist has no claim over the piece of work and that Nintendo and its affiliates can use the piece as they please. Therefore my copyright claim would be false. I read the entire policy carefully and noticed that it is strictly between the fanartist and Nintendo and its affiliates. No third party mentioned. The channel representative had misinterpret the policy as “fanart is free for all of the world to use” while that is not the case.
The email also stated that since my artwork was credited and was not even in the video itself it was not right of me to make the claim. This is again false because crediting the artist does not equal permission and because the channel monetized my artwork by using it as a clickbait on the thumbnail. They also went as far as claiming that I have don’t own the artwork because it features the Pokemon Solgaleo that rightfully belongs to Nintendo and its affiliates. Here the representative confused copyright and ownership. Nintendo owns Solgaleo and I had made no claim over the character. However, despite being fanart I still have my claim over the copyright because the artwork is an individual, original creation and not a copy or edit of the official art.
I pointed out their errors and did it in a firm yet polite way and explained why they can’t use any of these arguments against me. I told them I would retract the claim if they agree to change the thumbnail image. Fortunately they understood reason and agreed to my terms. I retracted the copyright claim and the channel instantly changed the thumbnail image.
I think I am justified to say that it was a good conclusion for everyone, so at least one copyright dispute ended well.
Inspired by this case I decided to write this article to share some of my thoughts and things I learned.
Next I will present some common arguments that art thieves/misusers might use against you. Oftentimes not even the misuser knows the facts, sometimes they do cherry picking and don’t read/think about the legal paragraphs and contents of the policies carefully enough.
THE COPYRIGHT LAW
Because the internet makes it possible to share creative works with the entire world it also means that the copyright disputes can happen between people of different nationalities. Naturally two different countries have different laws and sometimes there might be significant differences that might cause obscurities. However, there is one thing that needs to be remembered: the copyright law of the country in which the piece of work has been made is applied. In my case if there is a copyright dispute the Finnish copyright law would be applied. If the other party applies the law of their country it is not legitimate.
When it comes to fanart the most common misconception is that fanart can be copied and used freely because it contains pop-culture/movie/video game etc. characters. This is wrong, however. While the characters are mostly trademarked/copyrighted to a company/other party and the artist has no claim over the characters they still have the copyright over their own piece of work as long as it fulfills the following criteria:
NOTE The following statement is based on Finnish copyright law so there might be different interpretations in the laws of other countries.
In order to get the protection of copyright the piece of work must be independent and original. Independence means that the piece has to be the creator’s own work and not a copy or edit of an existing piece. Originality means that no one else would have come to the same conclusion based on the same subject. If a character is drawn again in a way that doesn’t violate the creator’s rights, there is no encroachment. Therefore no one can claim that you are violating the copyright law by drawing a copyrighted character or that you have no claim over your independent, original fanart creation.
COPYRIGHT VS OWNERSHIP
If the stolen/misused piece of work is fanart the accused party might confuse copyright with ownership by claiming that you don’t own a piece because of the character that appears in it. This is wrong.
NOTE The following statement is based on Finnish copyright law so there might be different interpretations in the laws of other countries.
A character is not a piece of work in the same way as a painting, song or writing, per se. However, as far as I know this is different in the US and Japan, for example, where a character usually gets the copyright protection as a piece of work. What this means is that you cannot profit of fan works or claim the character to be your own piece of work when a company or a person has the ownership over the character.
It is good to note that different companies might have different policies. For example Nintendo states that you have no claim over a character against Nintendo and its affiliates but mentions no third party (www.pokemon.com/us/legal/). The policy also mentions that fanart is fine as long as it is personal artwork created for noncommercial home use.
Such policies are therefore between the fanartist and the company only. As mentioned in the previous topic, while the company owns the character(s) that appear in your fanart piece you don’t give up your own claim/copyright to a piece of work.
In the following topics I’m going to cover some general points that are important regardless the nature of the case.
ALWAYS BE POLITE
This is probably the most important thing in any case you can imagine. Knowledge is power but being polite is something that can get you very far even if your knowledge isn’t flawless. Cussing, blackmailing, any other profanities, threats or angry outbursts can severely damage the discussion and your own influence and credibility. Even if the other party does this you must under no circumstances lower yourself to their level. When you remain calm and put thought into your actions and comments you give a firm and confident impression. Being impolite can turn against you as the other party can use that into their own advantage. Also, sometimes the case might be because of pure ignorance. This is why it’s very important to politely explain why the other party has done wrong by using your art. Ignorance is unfortunate but it mustn’t be confused with assholery. Ignorant people can usually be educated and informed and in the end come across as apologetic and regretful. When you work your way through the case with firm politeness you have a high chance of succeeding AND educating someone.
DON’T ATTACK THE THIEF
It is not always just the artist and the party that misused/stole the artwork that are involved in a case. Sometimes the fans feel very strongly about their favourite artist being wronged and might act without thinking. This may result in threats, cussing and irresponsible actions that end up doing more harm and turn the situation even more difficult.
When you come across something that might appear like an art theft or art misuse case the first thing you should do is inform the artist about it. Even if you are not certain if it’s something that has the artist’s permission or not you should still make sure the artist is aware. Do not start acting on your own.
As an artist, do not send your fans and followers against the thief. This does harm to your reputation and makes the case problematic, especially if the fans aren’t behaving appropriately. I’m not saying you should be alone in the case. You can rely on the help and support of your fanbase and friends but be mindful of how you use that as an asset. If there is a case that relies on spreading awareness, collecting enough likes on something or to raise visibility, do that but give the people clear outlines so they know what to do.
DO NOT PANIC
The first feeling when you come across an art theft or misuse case is always fear, disbelief and/or anger etc. The second is probably either anger, the feeling of being powerless and eventually it might escalate into the sense of defeat. It is important to go through these emotions and to get them out of your system by writing them down, talking to a friend or consulting other artists with experience in art theft/misuse cases.
When you have gone through these emotions they’re less likely to cloud your actions and judgement as you proceed in resolving the case. It is very vital that you can think clearly and analyze what has happened, what the other party has said and what you can do about it.
ASK FOR HELP
I previously touched the subject but I think it is good to make a separate paragraph for this topic. If you are unsure about what you should do or you’re still slightly panicking, ask for help. You can write a journal, a Tumblr or other social media post, talk to your friends. You can contact me if you don’t know who to go to for help. As busy as I am I’m still willing to help you the best I can.
When you ask for help be sure to cover the case as thoroughly as possible so you can pass on the relevant information. If there is something private involved use your own discretion with it. You’re always much better off when you have some second opinions and advice from others. You can even ask people how to word/proofread your messages to the art thief/misuser.
This is useful not only because you will get a better idea of what to do and what to say but also for your own confidence.
There are several tools you can use to either prevent an art theft or misuse case or to offer something concrete to back up your defense.
Watermarking is a very effective way of preventing art theft or misuse. However, it isn’t ultimate and oftentimes people would rather not cover their pictures as watermarks can be distracting. They can be both effective and not distracting though, but it usually requires some planning. Sometimes art thieves are very skilled in removing and covering watermarks and signatures so watermarking isn’t waterproof. It is still useful and recommended.
If you don't want to create a very prominent watermark or want something extra to mark your image you can create an invisible watermark in Photoshop (and possibly other programs with similar features). The invisible watermark is something that doesn't draw attention but is visible to the eye when you know where to look. Here is a very simple tutorial on how to create an invisible watermark: Invisible Watermark
FAQ and art policy are usually more preventive tools that inform people who are unsure about whether or not your art can be used under certain circumstances. If you do have some kind of thoughts on your art usage it would be good to make a public FAQ/art policy. In a case where your art has been stolen or used without permission you can always refer to your public art policy to point out that you haven’t authorized the use of the piece.
The resolution of the image is an important aspect. If you upload a 300dpi picture in large resolution online it is very possible for anyone to download it and use it in several different ways and even make profit of it. Low resolution doesn’t prevent copying but it does make using the image more difficult.
It is also possible to add metadata in Photoshop to your images. This metadata can contain your contact and copyright information. Here is a handy tutorial on how to add the information into your file: www.photoshopessentials.com/es…
There is also a tool on deviantART, namely the deviantART license button. You can determine the license when you submit a piece in the submit menu. Usually the license is set to default, which prohibits the use of the piece so if you weren’t aware of this you don’t need to be worried about having accidentally permitted the use of your pieces.
Here’s more information about deviantART’s copyright policy: about.deviantart.com/policy/co…
And lastly one of the most important things is to encourage vigilance among your friends and watchers and thank them for reporting any art theft/misuse cases to you. There simply cannot be enough eyes out there. I don’t even want to think about how many copyright infringement cases there are that go unnoticedI hope this is useful to you! If I have made any errors or you think of something should be added/clarified write it in a comment!