Pro­tect Your Sketch

How do artists deal with their work be­ing stolen in the age of the in­ter­net? Here’s what to do when your cre­ations get swiped with­out your con­sent

Broken Pencil - - Table Of Contents - by Alison Brover­man

THE IN­TER­NET IS A WON­DER­FUL and ter­ri­fy­ing place to be an artist. Any­one can cre­ate some­thing, scan it, and put it online for the world to see. If the right peo­ple find it, you can de­velop a com­mu­nity of fans, and maybe even make a bit of money. But in the wrong hands, your work can take on a life of its own.

That’s what hap­pened to Matt Furie, the cre­ator of the now-no­to­ri­ous char­ac­ter Pepe the Frog, which be­came a bizarre sym­bol of the ‘alt-right’ men’s rights ac­tivists who sup­ported Don­ald Trump’s run for pres­i­dency. Furie, a Hil­lary Clin­ton sup­porter, never in­tended this to hap­pen with his a sweet lit­tle goo­gly-eyed stoner frog, who first ap­peared in a 2005 web comic.

A few years af­ter that first ap­pear­ance, frames from Furie’s comics fea­tur­ing Pepe started be­ing used as a meme on sites like Red­dit. This meme even­tu­ally mor­phed to in­clude the ugly, hate­ful and of­ten vi­o­lent lan­guage of the Trump cam­paign, and in the fall of 2016, the Anti-defama­tion League of­fi­cially rec­og­nized Pepe the Frog as a hate sym­bol.

Since then, Furie has tried to re­claim his Pepe, with a “#Savepepe” cam­paign, and comics on sites like The Nib that com­ment on what hap­pened.

“It’s the worst-case sce­nario for any artist to lose con­trol of their work and even­tu­ally have it la­belled like a swastika or a burn­ing cross,” Furie told the Guardian news­pa­per in Novem­ber of last year. “I had to step up and speak on the car­toon frog’s be­half.” Un­for­tu­nately, for both Furie and Pepe, it’s al­ready too late.

Furie’s story is a par­tic­u­larly ex­treme ex­am­ple, but the in­ter­net has al­ways been double edged sword for artists, es­pe­cially vis­ual artists. On one hand, it’s a call­ing card with a low bar­rier to en­try: any­one can scan their work and up­load it to a web­site where it is po­ten­tially dis­cov­er­able by the whole world, and it’s a boon for an on­go­ing cul­tural con­ver­sa­tion. But once an im­age is online, it is in­cred­i­bly easy to copy and share, which can ob­vi­ously be ben­e­fi­cial to the orig­i­nal artist if they’re prop­erly cred­ited. Un­for­tu­nately, that’s a rare oc­cur­rence. Comics and pho­tographs fre­quently go vi­ral with­out the orig­i­nal artists’ name at­tached, as if they’ve sprung fully formed out of the ether of the in­ter­net. That’s why copy­right laws al­low for “fair deal­ing” (more on that later). But find­ing the line be­tween ap­pre­ci­a­tion, ap­pro­pri­a­tion, and rein­ter­pre­ta­tion is an on­go­ing chal­lenge.

For Canadian artist Ryan North, who has been pub­lish­ing his we­b­comic Di­nosaur Comics online since 2003, the line be­tween a remix and a rip-off is cre­ative in­tent “and whether they’re try­ing to sell it,” he says. “That’s a clear line in the sand you can draw be­tween fan work and knock-offs.”

Remix­ing isn’t a prob­lem for North — in fact, he ac­tively en­cour­ages it, and has a page on his site with links to fan-made Di­nosaur Comics trib­utes. “That’s su­per kosher and I love it. There’s noth­ing wrong with that,” he says. “It’s al­ways a plea­sure to come across that in the wild, like if some­one’s made a Di­nosaur Comics re­ac­tion gif or some­thing. That is al­most uni­formly a pos­i­tive ex­pe­ri­ence.”

More prob­lem­atic for North is the is­sue of mer­chan­dis­ing, be­cause he makes a large part of his liv­ing off of the Dino Comics mer­chan­dise (clas­sic slo­gans in­clude: “Feel­ings are bor­ing, kiss­ing is awe­some.”), he sells through the web­site Topa­toco, which spe­cial­izes in dis­tribut­ing mer­chan­dise for in­de­pen­dent creators.

But online, where copy­ing an im­age is as sim­ple as a cou­ple of clicks of a mouse, creat­ing knock-off mer­chan­dise is easy.“i’ll make a t-shirt de­sign, and some­one will rip off that de­sign. And this hap­pens all the time, and it’s so de­press­ing that it keeps hap­pen­ing,” says North. “And it keeps hap­pen­ing be­cause com­pa­nies are built on it.”

The in­ter­net is rife with sites that al­low you to make cus­tom mer­chan­dise, like Zaz­zle, Red Bub­ble, and Spread­shirt (North

“It’s the worst-case sce­nario for any artist to lose con­trol of their work and even­tu­ally have it la­belled like a swastika or a burn­ing cross,”

says he has re­cently had to deal with an in­fringe­ment is­sue from that last one). — You up­load an im­age, and these com­pa­nies will print it on a t-shirt or a mug. But these com­pa­nies seem to take for granted that the images peo­ple up­load to turn into shirts or socks or bibs will be their orig­i­nal art­work. There’s a box you have to click when you up­load the im­age that states you own the copy­right — but no one ac­tu­ally checks. Peo­ple lie, and the com­pa­nies them­selves play dumb.

“And then when you write them and say ‘hey you ripped off my work,’ they say ‘oh it’s not our fault, they checked off the box,’” ex­plains North. “Maybe in 2003 that would be a rea­son­able re­sponse, but there’s such a thing as re­verse im­age search now.”

North says he does a re­verse im­age search on his de­signs ev­ery few weeks, and he has to write a take­down no­tice to a com­pany once ev­ery cou­ple of months. “So it hap­pens a lot, and you don’t no­tice it a lot of the time,” he says. It’s one of the more an­noy­ing parts of his job.

This kind of in­sid­i­ous im­age theft isn’t lim­ited to fly-by-night online mer­chan­dis­ing com­pa­nies, and it’s not a new phe­nom­e­non. Nova Sco­tia-based tex­tile artist Blythe Church had a dis­heart­en­ing ex­pe­ri­ence with re­tail chains when a friend sent her a pic­ture of a toy mon­ster doll be­ing sold at Win­ners that was al­most iden­ti­cal to dolls that Church her­self had been mak­ing and sell­ing at in­de­pen­dent shops. Un­for­tu­nately, the dolls sold out at Win­ners be­fore Church was able to get her hands on one, so she was un­able to ob­tain any ev­i­dence that would sup­port le­gal ac­tion against the com­pany mak­ing the dolls.

“At first I felt flat­tered and then I re­mem­bered all my late nights hand sewing these mon­sters to fill or­ders for stores and for craft fairs and it made me so an­gry,” she says. “I feel really help­less. Chances are that the item was made abroad. Even if I knew who had copied my work, I am a small scale pro­ducer and don’t have the fi­nances to take le­gal ac­tion. In this in­stance wa­ter­marked photos wouldn’t help. As some­body mak­ing one of a kind pieces from up­cy­cled ma­te­ri­als there is lit­tle I can do to pro­tect my work. I will def­i­nitely think twice about what I share online from now on.”

And some­times it’s not even big chains who are at fault. De­signer Robb Mirsky no­ticed an im­age he’d de­signed for a band’s al­bum cover on a t-shirt at Toronto’s Black Mar­ket, a shop that spe­cial­izes in vin­tage cloth­ing and boot­leg band t-shirts. “Ba­si­cally, I had to hire a lawyer (thank­fully, my friend is a good one) and send them a cease and de­sist let­ter, buy a shirt off them for proof, and ul­ti­mately spend a lot of time, money, and emo­tion on a sit­u­a­tion I didn’t want to deal with in the first place,” says Mirsky.

Artist Eric Kim learned from friends that a graphic de­signer at a t-shirt com­pany, Freeze CMI, had taken Kim’s il­lus­tra­tion of the wrestler Randy “Ma­cho Man” Sav­age and in­cor­po­rated it into an ugly Christ­mas sweater de­sign. Kim hired a lawyer and sent a cease and de­sist let­ter. But even af­ter Freeze CMI stopped dis­tribut­ing the shirt, knock­offs started pop­ping up online, and try­ing to keep on top of them be­came “a gi­ant game of whacka-mole,” says Kim. “I couldn’t hold the POD ser­vice li­able be­cause

“At first I felt flat­tered and then I re­mem­bered all my late nights hand sewing these mon­sters to fill or­ders for stores and for craft fairs and it made me so an­gry,”

they were only pro­vid­ing a ser­vice, and I couldn’t find the per­son re­spon­si­ble for the work be­cause they would dis­ap­pear. Just use­less.”

Kim is ul­ti­mately philo­soph­i­cal about the whole ex­pe­ri­ence. “On the whole, it was an ed­u­ca­tional mo­ment. I was able to learn about the en­tire chain of distribution and how the work found a life for it­self out­side of my sketch­book,” he says. “But it was ex­pen­sive and painful.”

Even if the end re­sult was frus­tra­tion, North, Kim and Mirsky are all do­ing the right thing in try­ing to en­force their copy­right, ac­cord­ing to Pina D’agostino, who founded IP Os­goode, the In­tel­lec­tual Prop­erty Law and Tech­nol­ogy pro­gram at Os­goode Hall Law School. “There’s a dif­fer­ence be­tween the rights you own and en­forc­ing those rights,” she says. “You could own as any rights as you want, but if there’s no en­force­ment then it’s (only) as good as the pa­per they’re writ­ten on.”

So that’s step one: if you find your art get­ting stolen, en­force! But wait - how does one do that, ex­actly?

“En­force­ment of your rights is very chal­leng­ing in the dig­i­tal era, and a lot of my work is based on that. Be­cause there’s a pro­lif­er­a­tion of tech­nol­ogy that makes it eas­ier for users to take your work, so in terms of en­forc­ing, really, you have to be ed­u­cated on what your rights are,” ex­plains D’agostino. “Be­cause some­times when peo­ple do take your work it doesn’t mean they’re ac­tu­ally in­fring­ing on your copy­right. It might be per­fectly fine and within the realm of fair deal­ing.”

Ac­cord­ing to Canada’s Copy­right Act, grounds for fair deal­ing in­clude re­search and pri­vate study, education, review and par­ody. “But it’s largely open to in­ter­pre­ta­tion,” says D’agostino. Es­sen­tially, “[fair deal­ing] gives users some op­tions to ac­cess works and use them within the lim­its of the law.” North’s ex­am­ple of print-on-de­mand t-shirt de­signs is a clear copy­right in­fringe­ment, she says. But the case of a store like Ur­ban Out­fit­ters, sell­ing items that re­sem­ble de­signs by in­de­pen­dent de­sign­ers is less clear-cut.

“Gen­er­ally, you have copy­right on your work and it’s really a sub­stan­tial part of your work. So that’s the doc­trine that’s en­gaged, ‘sub­stan­tial­ity,’” says D’agostino. But what’s “sub­stan­tial” is open to in­ter­pre­ta­tion. “Ba­si­cally it’s on a case by case ba­sis, it’s a qual­i­ta­tive as­sess­ment, and it’s not so much the amount, but the qual­ity of what was taken: if it’s the vi­tal and es­sen­tial part of a work. So a good ex­am­ple is the jin­gle or re­frain in a song. If it’s a very catchy tune, that would be a sub­stan­tial part.”

And in the case of de­sign, it gets even more com­pli­cated be­cause of the “idea/ex­pres­sion di­chotomy,” says D’agostino. “So what that says is you can’t pro­tect ideas, you can pro­tect the ex­pres­sion of the idea. How­ever, what is an idea, and what is the ex­pres­sion is of­ten blurry.” Take, for ex­am­ple, a t-shirt with a heart pat­tern on it. Be­cause hearts are sym­bols, they aren’t sub­ject to copy­right, but if your de­sign has a very spe­cific colour and size pat­tern, then you might have more of a case for ex­pres­sion.

But at least in re­tail-ori­ented cases like these, as frus­trat­ing and time-con­sum­ing as they can be, there’s a clear ac­tion and re­sult: you send a let­ter, the t-shirt com­pany stops sell­ing your unau­tho­rized images. It’s even more frus­trat­ing to see an im­age you cre­ated go vi­ral...with­out your name on it.

“It’s hard, be­cause you look at some­thing and now it’s com­pletely di­vorced from you,” says North. “There’s no way for any­one to eas­ily find out who made

it, un­less they do a re­verse im­age search, which no one is go­ing to do. It’s hard when you see some­thing that has a mil­lion notes be­neath it or a mil­lion likes, and you think ‘I could have gained some read­ers from that.’”

It’s par­tic­u­larly in­fu­ri­at­ing to see your own un­cred­ited cre­ation used as click­bait. Rob Macin­nis is a pho­tog­ra­pher, and if you spend any time at all on so­cial me­dia, you’ll prob­a­bly rec­og­nize the photo from his col­lec­tion “Dog & Pony Show” which fea­tures a group of barn­yard an­i­mals stand­ing clus­tered to­gether as though they’re pos­ing for a school por­trait. It was pub­lished in the con­tem­po­rary un­der­ground art jour­nal Jux­tapoz Mag­a­zine (le­git­i­mately, along­side an in­ter­view with Macin­nis). Shortly there­after, the photo was shared, un­cred­ited, by a Bri­tish jour­nal­ist on Twit­ter with the com­ment: “I’d love to be a part of this gang.”

“It was fa­vor­ited tens of thou­sands of times, and retweeted just as many,” says Macin­nis. “I con­tacted him and asked if he could add my credit, but you can’t edit a tweet (first prob­lem). He tweeted again that it was me, but very few peo­ple no­ticed the sec­ond tweet.”

This photo con­tin­ues to be an in­ter­net favourite, which would be great, ex­cept that it al­most al­ways ap­pears with­out Macin­nis’s name at­tached. It was re­cently in­cluded in a list ti­tled “10+ An­i­mals That Look Like They’re About to Drop the Hottest Al­bums of the Year” on Bored­ (un­sur­pris­ingly, the list in­cludes many other im­prop­erly cred­ited photos as well).

Macin­nis blames so­cial me­dia com­pa­nies for how their in­ter­faces are set up. “In­sta­gram, Twit­ter and Face­book make it quite dif­fi­cult to find the au­thor of a pho­to­graph. Our de­vices are set up to eas­ily share, and nearly im­pos­si­ble to re­li­ably re­tain au­thor­ship,” he says. “If any­one at any time posts a photo with­out credit, ev­ery­one af­ter­wards will not be able to back­track and find the orig­i­na­tor. It’s like a chain where when one link is bro­ken, ev­ery share af­ter­wards, be it ten, or ten mil­lion shares won’t in­clude your credit.”

There are count­less sto­ries like these. Po­lit­i­cal car­toon­ist and Bro­ken Pen­cil con­trib­u­tor Pa­trick Bur­go­mas­ter once drew a cou­ple of comics about the chil­dren’s game freeze tag that some­how be­came one of the first things that came up if some­one did a Google im­age search for the term. “I was laugh­ing as I dis­cov­ered through Google that a small lo­cal news web­site in the United States had used one of my freeze tag cartoons in an ar­ti­cle about freeze tag in public schools,” says Bur­go­mas­ter. “Nor­mally a mag­a­zine like Bro­ken Pen­cil pays me well for il­lus­tra­tions and cartoons; in this case I did put the car­toon on my blog for any­body to en­joy. But they didn’t even give me the credit, those scoundrels! I don’t ex­pect money for that. Af­ter all I did put it on my blog . . . but I might have got some jobs from that, you never know.”

For many artists who have ex­pe­ri­enced theft, that’s what irks the most — the lost op­por­tu­nity for recog­ni­tion and rev­enue.

To Macin­nis, the plea­sure of know­ing that mil­lions of peo­ple all over the world love his pho­to­graph of barn­yard an­i­mals is tem­pered by the frus­tra­tion of know­ing how few peo­ple care about the per­son behind the cam­era (or the freeze tag comic, or the Randy Sav­age il­lus­tra­tion). “I won­der how many peo­ple in the world want to know who I am and can’t find me,” he says. “I’ve ac­tu­ally had peo­ple in bars show me the im­age on their phones, not know­ing it was me who made it.”

Alison Brover­man grate­fully ac­knowl­edges the sup­port of the On­tario Arts Coun­cil’s Writ­ers Re­serve Pro­gram.

il­lus­tra­tion by Pa­trick Bur­go­mas­ter

The orig­i­nal: Robb Mirksy’s il­lus­tra­tion on his web­site.

The copy: A ripped-off T-shirt ver­sion found at Black Mar­ket.

The copied ver­sion, sold at TJ Maxx’s.

Orig­i­nal: Blythe Church’s mon­ster

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