At some point in their career, most artists find that their work has been copied without their permission. This is even more common today than it was in the past; you may see your work on another website, possibly even for sale by someone else!
When this happens, the first thing you should do as save evidence of the violation. Take screen snapshots of the offending website; have them witnessed, signed and dated by an independent observer.
If your artwork bears clear copyright notices, as we discussed in the previous article, the person who copied your is probably guilty of willful infringement. However, before you call an attorney, you may want to avoid legal fees and give the offender an opportunity to stop the infringement.
You’ll need to start by finding out who owns or operates the website. You can use a whois service like whois.net or www.internic.net/whois.html to find the registered owner of the website.
Cease and Desist!
Send a “cease and desist” letter by e-mail and regular mail to the owner (save dated copies for your record). Clearly identify the offending work(s), state that you are the copyright owner and the work is being used without your permission. State that the work must be removed from the website, and all copies must be destroyed, with 5 days.
The Digital Millennium Copyright Act
If the work is not removed, you can move on to the next step. Under traditional copyright law, everyone in the chain of distribution is potential liable for violations. However, under the terms of the Digital Millennium Copyright Act (DMCA) of 1998, web hosting companies and service providers are not liable, if they provide a mechanism for copyright holders to file a “takedown notice” to have offending materials removed.
You’ll need to find the hosting provider, and you may require some technical assistance to do this. Note that if the content is posted on a public site such as YouTube, Blogger, or WordPress, then that company is the “hosting provider” for purposes of this discussion.
But if the site is a privately registered domain, you’ll need to do some research. The information you obtained from your whois search should list the DNS servers for the site; this may allow you to identify the hosting company.
Alternately, you can use a site like cqcounter.com/whois to look up the domain name and find its IP address; then use the site again to search for the IP address, and find the company that owns the address (this will be the hosting company). If the company is located in the United States, you will be able to file a takedown request (of curse, hosting companies in other countries are not subject to this law, though some operators will still honor requests as a matter of policy).
Once you find the hosting company, check with the copyright office to find their DMCA agent (go to www.copyright.gov/onlinesp/list/a_agents.html). If you can’t find an agent listed, go to the hosting company’s website and look there for contact info.
There is a very good tool for identifying hosting companies and DMCA agents on the Copyright Safeguard website.
Send the DMCA agent a “takedown notice.” Clearly identify the web address and the material that infringes your copyrights. Provide a statement that you are the copyright owner (along with supporting evidence if you can provide it), and ask them to remove the content in accordance with the Digital Millennium Copyright Act.
Your takedown notice should also include the following two statements:
- “I have a good faith belief that use of the copyrighted materials described above on the infringing web pages is not authorized by the copyright owner, its agent, or the law.”
- “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner.”
Be sure to include your full name, e-mail address, phone number, and postal address.
The Copyright Safeguard website also provides a sample DMCA takedown letter that you can download.
In most cases, the material will be promptly removed, within a couple of days. The hosting company will contact you if there are any questions or problems.
But there is one more wrinkle. If the owner of the offending website chooses to contest your copyright claim – a rare occurrence – your only recourse may be legal action.
In addition to contacting the hosting company, you can also contact the domain registrar listed in the whois information. The registrar is not technically part of the distribution chain, and is not liable for the copyright infringement, but some have policies to honor takedown requests.
You can also contact the major search engines: Google, Yahoo, and Bing, and send DMCA takedown notices to each of them.
In some cases, a DCMA takedown notice may not be sufficient. Legal action may be required if:
- The website is hosted outside the United States, and the hosting company does not have a takedown process.
- The hosting company does not remove the infringing material for some other reason.
- The website owner chooses to contest your copyright claim.
- You believe you have suffered significant financial harm, and you wish to seek “damages.”
- The copyright violator is distributing copies of your work in some other form.
If you need to file a lawsuit, you will almost certainly need an intellectual property lawyer. The records you’ve kept of the infringement, and your communications, will be helpful when you talk to a lawyer.
You can contact your local bar association for a referral. In most cases, attorneys offer a very inexpensive or even free consultation to help you determine if you have a case, and advise you on how to proceed. You can also search to see if your state has an organization like “lawyers for the art,” which provides inexpensive legal help for artists.
For More Information
The copyright articles on ArtChain.com are intended to provide a basic understanding of copyright protections and how they work. If you’d like to learn more, we recommend:
Art Law Conversations: A Surprisingly Readable Guide for Visual Artists, by attorney Elizabeth T. Russell, (available at Amazon.com) includes a great deal of useful information about copyrights, including practical examples of cases.
What Do You Do When Someone Steals Your Content, at lorelle.wordpress.com/2006/04/10/what-do-you-do-when-someone-steals-your-content. The site has a lot of useful, clearly written information, plus dozens of valuable links.
Copyright for Collage Artists, at www.funnystrange.com/copyright. Another great, information-filled site, though it is apparently no longer being maintained or updated.
Neither the author of this document nor the operators of this website are attorneys or accountants. The information presented here should be considered a general overview. This information does not constitute legal or financial advice.