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:

• Part 4: Art Thieves in the Digital Age: Still Learning – Vigilance without Paranoia

©2008 Susan K. Donley. All Rights Reserved.