September 29, 2008

Artists: Don’t count on a government bail-out for you!

Orphan Works Act passes the Senate–Don’t let it pass the House, too

The Senate wasn’t so busy bailing out Wall Street and Big Business that it couldn’t find time to betray small businesses who “manufacture” art, photographs, music, and other creative work.

The onerous Orphan Works Bill passed the Senate last week, like sticking it to the nations creatives was even more important than extracting the nation from the investment banks crumbling all around us. Unbelievable! How could this possibly happen when all of our Senators’ efforts were supposedly focused on the Wall Street meltdown? The answer to that question is right in plain sight — the practice of “hotlining” bills, explained in this blog post by the Illustrators Partnership: Orphan Works: The Devil’s Own Day – Never Too Busy to Pass Special Interest Legislation

What’s the fuss? “Orphan Works” are images (or music, written works, etc.) whose creator cannot be identified. The proposed bill would make it trivially easy to infringe (steal) any copyrighted work by claiming it is “orphaned.” Under the proposed bill, all someone needs to do to use an image is to do a “reasonable search” for the artist or other copyright owner. If one isn’t found, without any further proof, they can claim they are using an orphaned image!

Think about this: How easy is it to download an image from the web, attach it to email and honestly loose track of where it came from. Now think about how much dishonest people could get away with by removing signatures and watermarks from images with a couple of mouse clicks in Photoshop. All they would have to do to avoid being charged with infringement would be to say that they tried to find the artist and couldn’t.

For very good reason, creative professionals feel betrayed by this reversal of copyright protection for their stock in trade. It is easy enough to steal images under the current law, as my experience with art theft shows. This bill’s disregard of artists’ property rights is like making it legal for a squatter to take possession of land just because they don’t know how to look up the deed.

Our only hope now is that the House of Representatives will fail to pass its version of the bill, HR 5889, before it recesses. Whether you are an artist or not, please take the time to protest this outright betrayal of creative professionals’ property rights. The Illustrators’ Partnership web site makes it easy to send an email to your representative from an artist (photographers and musicians included), small business owner, or concerned citizen. Go write your Representative NOW — no time to delay.

And remember: Every member of the House will be re-elected in a couple of weeks. You may want to remind them of that in your letter!

June 1, 2008

Art Thieves in the Digital Age, Part 4: Vigilance without Paranoia

Part 4 of an article written for Ann Kullberg’s From My Perspective colored pencil e-zine on my experiences with online theft of my drawings — and what I did about it. The full article is posted here in four parts:

  1. Art Thieves in the Digital Age: The Changing Face of the Art Thief
  2. Art Thieves in the Digital Age: My Tip of the Iceberg
  3. Art Thieves in the Digital Age: Lessons Learned
  4. Art Thieves in the Digital Age: Still Learning – Vigilance without Paranoia

Part 4: Still Learning: Vigilance without Paranoia

All three of the art theft cases I became aware of were brought to my attention by other alert souls, so I don’t have any surveillance secrets to share. Search engines are of little help, since they only pick up text and digital thieves obviously don’t post your name! Image searches on the subject portrayed may do better, but be prepared for a deluge of results when you search for something like “golden retriever” in Google Image Search (my search returned 779,000 images). There’s also a good chance that stolen images won’t show up unless our art thieves have bothered learning search engine optimization.

Between creating and marketing my art, I’m busy enough without spending hours tracking down thieves. Affordable digital tools to help us strike the balance between vigilance and paranoia would be nice. Digital watermarking services like Digimarc are a bit steep for my budget at the moment, but hold promise.

A few common technological solutions artists and photographers have tried are trivially easy to circumvent by anyone who knows how to take a screenshot. Right-click disablers (scripts that prevent users from right-clicking (control-click, Mac) on an image to access the “Save image as…” command) and embedding images in Flash-based animations and sideshows come to mind. If you know of other technology solutions to discourage Internet art theft, please speak up in the comments section on my blog.

Alarming, Late-Breaking News

I had hoped to end this article on a positive note, with advice my mentor, a gallery director pioneering the sale of fine crafts as art, gave artists whose work had been pirated by unscrupulous manufacturers 30 years ago: “An artist’s best defense is creativity – you can’t afford to fight them, so stay ahead of them with new designs and excellent craftsmanship.”

Unfortunately, since March 2008, when I accepted Ann Kullberg’s invitation to write this article for her online colored pencil magazine From My Perspective, alarming legislation has reached both houses of the U.S. Congress that could radically change copyright protections for artists. The so-called “Orphaned Works” amendments to current copyright law would allow free use of images whose copyright can’t be traced with “reasonable effort.” To keep from being “orphaned”, each image’s copyright would have to be registered, now an optional protective “upgrade” of the automatic copyright that exists from the moment a work is created.

This is ominous legislation for artists, authors, musicians, and all other crafters of creative original works. For up-to-date information and an excellent way to quickly send personalized email protests to your congressional representatives, I urge you to visit the Illustrators’ Partnership’s excellent website.

Let’s keep talking: What lessons have you learned?

With the legislative tide turning against artists and our fellow creative professionals, it is more important than ever to learn how to protect ourselves against those whose idea of “appreciating” art is to steal it.

I plan on posting strategies for tracking down, as well as “taking down,” art theft on my blog, so stop by occasionally if you are interested in this issue. Better yet…

Let’s continue this conversation publicly for the benefit of all artists. If you have learned lessons or developed strategies for protecting your artwork from online theft, please join me in this discussion below in the comments on my blog.

Previous installments of this article:

  1. Art Thieves in the Digital Age: The Changing Face of the Art Thief
  2. Art Thieves in the Digital Age: My Tip of the Iceberg
  3. Art Thieves in the Digital Age: Lessons Learned

©2008 Susan K. Donley. All Rights Reserved.

May 31, 2008

Art Thieves in the Digital Age, Part 3: Lessons Learned

Part 3 of an article written for Ann Kullberg’s From My Perspective colored pencil e-zine on my experiences with online theft of my drawings — and what I did about it. The full article is posted here in four parts:

  1. Art Thieves in the Digital Age: The Changing Face of the Art Thief
  2. Art Thieves in the Digital Age: My Tip of the Iceberg
  3. Art Thieves in the Digital Age: Lessons Learned
  4. Art Thieves in the Digital Age: Still Learning – Vigilance without Paranoia

Part 3: Lessons Learned

Unfortunately, I suspect these three instances are just the tip of the infringement iceberg, since they came to my attention without my even looking. But they were enough to get me started looking for ways to protect myself and pass on to other artists. However, I must admit that there is no way to fully protect ourselves, short of not putting our work on the Internet at all, which isn’t much of an answer if you need to promote your work (and who doesn’t?).

Lesson 1: Don’t expect the service providers to police their sites

For a few weeks, I kept monitoring Zazzle to be sure the same members didn’t repost my drawings after “the coast was clear.” Though these art thieves stopped using my drawings, they are still active Zazzle members, feathering their nests with artwork obviously done by a number of different artists, from the wide variety of styles represented. Since no credits are given, I sincerely doubt those artists either know or gave permission for the use of their work, any more than I did. Zazzle clearly doesn’t exercise their declared option to oust members found to be infringing. We artists are on our own.

The Digital Millennium Copyright Act (DMCA), which was passed in 1998 to update copyright protections, fair use, and liabilities to the new realities of digital publishing, tries to protect both free speech and the rights of copyright holders. Service providers like ISPs, blog hosts, Flickr, or Zazzle aren’t liable for copyright infringement by their users, however they must disable or delete (“take down”) any content they host when they are notified of an infringement occurring on their service.

The DMCA puts the burden of proof on the copyright holder to prove ownership — otherwise, the wonderful free-flow of information we know as the Internet would be hopelessly bogged down with intellectual property clearances. Even when alerted to serial copyright infringers (like the Flickr and Zazzle users who infringed others’ work, as well as mine), service providers apparently only take down the images someone has proven to them are infringed. In fact, the DMCA’s protection of free speech provides a reverse incentive for service providers to be pro-active, since their members can dispute a take-down notice not backed up with proof of infringement.

I’ve come to appreciate services like Cafepress.com, which posts clear intellectual property guidelines prominently on their image upload page and requires checking a box certifying that you are the copyright holder before uploading every image. They also publish an extensive Content Usage Policy, which is worth reading by anyone wanting to do the right thing by fellow creative artists (for example, those of us who use reference photographs or collage elements). Some providers bury such language in general terms of service, only show it once when the member initially signs up, or obscure it behind a link in the page footer.

Lesson 2: Know how to send a “Take-Down Notice”

The good news about the DMCA is that it provides clear recourse for digital theft, the “Take-Down Notice,” also known as a “Cease and Desist Order” by lawyers. If you find that your work is being used on the Internet without your permission, of course, you can approach the copyright infringer yourself to ask them to take it down. But if they don’t, you have no way to make them do it. On the other hand, their ISP or other service provider does have that “take down” ability and under the DMCA they must, if you provide proof that the infringed work is yours.

Look for a link to “Copyright Policy” or “Intellectual Property Policy” on the service provider’s web site, most likely in the footer of every page. It will give clear instructions (usually taken straight from the text of the DMCA) for sending a take-down notice, including what information to provide and to whom to send it.

The proof I provided was a link to the original web page displaying the drawing in question with its various copyright notices and a link to my separate copyright page (see below). You must also provide a link to the infringing material on their site.And don’t forget to take a screenshot, print out the web page, or save it as a PDF for your own records (on the Mac, you can “Save as PDF…” from the “Print” dialog box). Record the date and original URL of the page, since it may disappear shortly after you make your complaint.

Lesson 3: Be able to prove your work is yours

By law (at least for now!) any work is automatically copyrighted to its creator the moment it is completed, but you should take steps to prove to someone else that you own your work:

  • Sign your physical work with a copyright notice. Though not technically required for copyright protection, as I learned from the t-shirt printer, it helps honest people get in touch with you. I sign “Susan K. Donley ©2008” and make a point of making it legible.
  • Keep good records for each work of art you create, when it was created, who it was sold to and copies of any commission or sales agreements that state that you retain copyright ownership.
  • Use the dated copyright notice under each image on your web site or blog.
  • Register your copyright for ultimate protection. Registration with US Copyright Office is necessary proof in courts if you ever need to sue. I confess that this is so daunting and expensive with a large body of work that I’ve yet to do it, but I definitely plan to.
  • Consider watermarking larger images on the web with your copyright notice and domain name. This is controversial in the online art world – some say it is defacing your artwork with a distraction that screams to site visitors “I don’t trust you!” and can be easily removed in an image editor. These folks’ remedy is to limit web images to low-resolution images that aren’t suitable for printing. Unfortunately, my experience shows that the quality of low-resolution images is not a deterrent to thieves willing to put up with a little blur for the sake of freebies.

    On the other side are the watermarkers, often stock-image photographers, who screen a huge watermark onto the middle of an image to make it unusable. I’m in-between. I disagree that a watermark serves no purpose, since it is the only way I know to make sure my notice survives when my images appear out of context in Google or Yahoo’s image search, which my search engine logs tell me is my web site’s biggest referrer. So, I use a smaller, but unmistakable, watermark along the bottom of a 500×500 pixel image (I don’t bother on most thumbnails, like those I used in this article). I suspect it only deters honest people, since it is easily removed, but it is a compromise I can live with.

Lesson 4: Post prominent contact information and a copyright policy

Help the honest people and Good Samaritans find you! If I had had my phone number buried on my web site’s “Contact us” page, instead of prominently displaying it on every page, I doubt I would have heard from the printer in Quebec.

Link from every page to your copyright notice where you explain in plain langage what people may and may not do with the images of your artwork on your web site. My Flickr Good Samaritan took the time to look up this page on my site and referred the infringer to it, making clear that she was in the wrong. I also referred Flickr.com and Zazzle.com to my copyright policy page, as well the relevant originating pages in my Take-Down notices.

The next installment of this article is:

©2008 Susan K. Donley. All Rights Reserved.

May 30, 2008

Art Thieves in the Digital Age, Part 2: My Experience Being Robbed

Part 2 of an article written for Ann Kullberg’s From My Perspective colored pencil e-zine on my experiences with online theft of my drawings — and what I did about it. The full article is posted here in four parts:

  1. Art Thieves in the Digital Age: The Changing Face of the Art Thief
  2. Art Thieves in the Digital Age: My Tip of the Iceberg
  3. Art Thieves in the Digital Age: Lessons Learned
  4. Art Thieves in the Digital Age: Still Learning – Vigilance without Paranoia

Part 2: My Tip of the Iceberg

Apparently my pet portraits have become a tempting magnet for image searchers – who can resist puppies and kitties, right? Not a week goes by when I don’t get one or more requests to use my work for all kinds of purposes: charitable, commercial, and downright silly. These honest folks at least ask first. For inappropriate uses I simply say “no.” Others usually disappear when I explain that there is a licensing fee to use my art.

From the volume of honest folks who ask permission, I suspected many more just appropriate the images without asking and, of course, without my knowledge. Unfortunately, my suspicions were well-founded. This is my story of how I found out about at least three instances of infringement and what I did about them. Hopefully, some of my lessons learned will help other artists.

Digital Vandalism Reported by the “Neighborhood Watch”

Persian Cat graphite drawing by Susan Donley, 2006Infringed and alterned Persian Cat drawing original by Susan Donley, 2006The first infringement I became aware of appeared on the Flickr.com photo-sharing site, where I share my drawings with other artists and animal lovers. One day, I received an email from another Flickrite, whom I’d never met before, telling me that someone had taken my “Persian Cat” drawing from my website, altered it, and posted it on Flickr with her signature. She never bothered to remove my signature, apparently assuming that altering and publishing was OK. I hadn’t even posted this drawing on Flickr, but this kind whistle-blower noticed my signature and realized she had seen it on other drawings I’d posted. She went to my regular website, found the original there and emailed me.

This screen shot of the infringer’s page shows the garish color alterations she made and then had the nerve to sign! You can read what I wrote to her in the comments on this page to prove that the work was mine, explain why it was infringing, and demanding that she take it down.Meanwhile, I looked up Flickr/Yahoo’s “Copyright/IP Policy,” easily accessible from the bottom of each Yahoo-hosted page (Yahoo owns Flickr).

It gives very clear directions for reporting infringements and their policy to remove any infringed image under the provisions of the Digital Millennium Copyright Act (DMCA). I wrote the appropriate email to Yahoo’s Copyright Agent and within hours the vandalized “Persian Cat” had disappeared. I have no way of knowing if the infringer read my comment and removed it on her own or if Yahoo deleted it. Either way, no one contacted me except for Yahoo’s automatic “We’ve received your email…” message. OK, don’t expect an apology, I guess!

The infringer hasn’t stopped altering and reposting other people’s images, but she has learned at least to post a notice that her images are alterations of others’ work.

An Offline Infringement

Golden Retriever graphite drawing by Susan Donley, 2006Another Good Samaritan brought the next incident to my attention last December. The phone rang while I sat at my drawing table, furiously working on last-minute Christmas commissions. I almost didn’t answer it so I could keep working, but I was intrigued that the caller ID displayed “Quebec.” On the line was the owner of a business that prints custom t-shirts (I was told he does most of the official work for the World Wrestling Federation!). He explained that a customer had walked in with an ink-jet print of my Golden Retriever drawing from him to transfer to a t-shirt.

Luckily, this is a copyright-savvy businessman who pays licensing fees to the WWF, so he was suspicious. This time the infringer had erased my PetsPictured.com watermark, but neglected to erase my signature. The printer googled my name and “golden retriever” and up popped the infringed image, my drawing! That’s when he picked up the phone and called me to ask if I had given his customer permission to use the image. I assured him that I had not and thanked him profusely for taking such pains to get in touch with me.

Then he asked me if I was interested in licensing my work, as he often gets requests for certain breeds of pets on shirts. He usually uses royalty-free clip art, but liked my work better. I explained that I was interested in licensing my work eventually, but needed to do more research so … he finished my sentence “we both make money.” “Exactly,” I replied, “Since I need to make a living and don’t want my work to become just more clip art available anywhere.” We agreed to stay in touch and I thanked him again.

Zazzled

Yellow Labrador Retriever graphite drawing by Susan Donley, 2006Zazzle products with infinged labrador retriever drawing, original by Susan Donley, 2006In March, my mother read a USAToday article about Zazzle.com, a print-on-demand competitor to Cafepress.com, where I have a shop featuring my pet portraits. Always on the look-out for ways to keep me out of the poorhouse (er, I mean, promote my artwork), my mom surfed over to Zazzle to see if they offered any advantages. Scoping out the competition, she put the names of a few popular dog breeds into their search box. Ouch – up popped products featuring my drawing! My mom emailed me immediately and, like only an offended mother can, set out with a vengeance to find out if other images had been stolen by systematically searching for every breed that I had posted on my site. Unfortunately, she discovered that several Zazzle members had helped themselves to my art!

This time, I was really angry! The previous two infringements could be construed as “fair use” by people not familiar with copyright law. But this was different: At Zazzle, people set up stores with merchandise whose main selling point was my work! They fully intended to profit from their enterprise without sharing the proceeds with me. It was outright theft! To add insult to injury, these thieves accepted rave comments left about the “cute pictures” as if they had done them!Rikko, German Shepherd graphite drawing by Susan Donley, 2007Zazzle page with infringed drawing of german shepherd, original by Susan Donley, 2007

This time, I knew what to look for and found Zazzle’s instructions for sending a “Take-Down Notice.” I angrily fired off the appropriate message to make them delete the work (preferably kick out the offending member) and reminded them than any profits from sales of the work rightly belonged to me (by the terms of the DMCA, not just common decency). I received the expected “we-aren’t-responsible, but we are deleting the product” canned email response from Zazzle. The products were deleted without apology, much less remuneration.

Then I suddenly remembered that, in my anger, I neglected to take screenshots of the offending Zazzle pages. After a moment of panic, I remembered that Google caches web pages, so I googled “zazzle [breed name] [zazzle-member-name]” and was able to track down cached pages for every one of the infringed images. Whew! That was a close call, because screenshots or print-outs are critical for proving infringement!

The next installment of this article is:

©2008 Susan K. Donley. All Rights Reserved.

May 29, 2008

It’s Dangerous Out There: Art Thieves in the Digital Age

Part 1 of an article written for Ann Kullberg’s From My Perspective colored pencil e-zine on my experiences with online theft of my drawings — and what I did about it. The full article is posted here in four parts:

  1. Art Thieves in the Digital Age: The Changing Face of the Art Thief
  2. Art Thieves in the Digital Age: My Tip of the Iceberg
  3. Art Thieves in the Digital Age: Lessons Learned
  4. Art Thieves in the Digital Age: Still Learning – Vigilance without Paranoia

Part 1: The Changing Face of the Art Thief

Twenty years ago, the words “art thief” brought to mind a stealthy figure dressed in black, breaking into museums, art galleries, or pricey houses to silently slit a canvas out of its frame and sneak away with the rolled masterpiece tucked under arm. That’s the Hollywood version anyway! Plenty of artists working in that era can also tell horror stories about their designs showing up in catalogs as cheap overseas knock-offs. This kind of theft never had the drama to make it to the screen, but was far more harmful in stealing the livelihood of working artists. Still, design thieves had to at least do a little work to track down suitable designs in galleries or paper publications.

Boy, have things changed for dishonest manufacturers now that finding good art is just a Google image search away! But that’s not the worst of the temptations the digital world offers. Now that nearly everyone has unprecedented access to art images, technology has made it possible for everyone to be a manufacturer, as well! Do a search, find an image, print it out on t-shirts, and give them to all my friends! Just erase that unsightly copyright notice in Photoshop (a job that would have required a darkroom and sophisticated airbrush skills 20 years ago).

In short, technology has given just about anyone — the honest and the dishonest — unprecedented access to art and the means to reproduce and publish it. The result is a host of art thieves operating in the open with no need to sneak around and dress in black! The honest thieves don’t know they are doing anything wrong. They believe anything on the Internet is “free” and don’t realize they are breaking the law by stealing someone’s artwork (AKA “infringing copyright”) in their projects. The dishonest thieves know better, but steal anyway, taking advantage of all the digital “safe-cracking” and “fencing” tools they can find.

Feeling paranoid? Me, too – and for good reason, as it turns out! In Part 2, I will tell about three times that I know of that my artwork was stolen from my website.

May 23, 2008

Protect the work of creative professionals: Oppose “Orphaned Works” legislation

In my previous career as an instructional designer of educational materials for museums and public broadcasting and in my present career as a practicing artist, I’ve been on both sides of the  copyright laws. Educators depend on Fair Use copyright provisions and low-cost licenses to use creative works to teach and inspire future creative professionals and, more importantly, future citizens who are open-minded and willing to see that there can be many good solutions to a given problem — a lesson the arts teach everyone. We all stand on the shoulders of the giants whose creative work — writing, art, music, drama, and more — inspire us. Access to those works should not be locked away — I definitely get that! I’ve been frustrated when I’ve tried to track down the copyright-owner of a poster or song from the 1940s, only to find out the author has died, the publisher is out of business, and the heirs are untraceable. I’ve had to abandoned using such an “orphaned work” in a curriculum as a result.

But I also know that those of us who live by bringing to life creative ideas through original words, images, and music, need protection from those who would rob us of our stock-in-trade. Now, technology has made it ever-easier to steal creative work: photocopy machines and tape recorders make way for JPEGs and Napster. By passing the Digital Millennium Copyright Act (DMCA) in 1998 the U.S. Congress did much to address the digital media concerns of stakeholders on several sides of the issue.

Now, inexplicably, both houses of Congress are considering Bills that would roll back copyright protection decades at a time with technology advances make it ever-easier to circumvent existing protections! The so-called “Orphan Works” bills attempt to address problems, like I described above, encountered when trying to use older copyright-protected material whose owners have disappeared into the mist of time. But by doing so, they run the very real risk of opening a Pandora’s Box of infringement that literally steals living  artists’ work, thus their livelihoods, right out from under them!  If you love the work that writers, artists, actors, musicians, and other artists do to enrich our lives, I urge you to learn more about this legislation at Illustrators’ Partnership’s excellent website. Then visit their easy-to-use form that allows you to customize and send letters to your representatives in the U.S. House and Senate.

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