Dealing with art reposters: copyright and website takedowns
Recently, I’ve been seeing a lot of my artist friends complain about people reposting their art on the internet. Not just complain, but rant, plead, and beg reposters that reposting their art is disrespectful, that it hurts the artist, and please, please will people stop reposting their art without permission?
Dear artists: you don’t need to beg. You created art, you own the copyright in it.
Disclaimer 1: I am not getting into the issue of fanworks and the interplay of original works/derivative works. This post is just sticking with the basics: you, an artist, created an artistic work through your own effort, which you own the copyright for, and someone has reposted it in its entirety without your permission to their own website or social media account.
Disclaimer 2: For simplicity’s sake, this post is just talking about copyright. Issues like moral rights and Creative Commons won’t come into this, those are whole subjects in themselves, and this post is long enough as it is.
How do I get copyright? Automatically. There is no need to register anything, no need to get a lawyer to sign documents, no need to pay any fees, no need post it to yourself or make a sacrifice to Zuul, NONE OF THAT IS NECESSARY(1). Copyright arises automatically the moment you express your idea in material form, ie., the moment you put pen to paper, Photoshop brush to white space, take a photograph, etc. You make it, boom, you automatically own the copyright in it(2).
(1)Yes, the U.S. has a copyright registration system but it’s there as an option to access certain legal extras under U.S. law. It is not a condition to have copyright in the first place.
(2) There are exceptions to the “you make it, you own it” rule, the most common one being when you are employed to make the art (eg., you’re employed in an animation studio drawing storyboards, all the storyboards you draw belong to the studio). Being employed to make art is NOT the same as being commissioned as a freelancer to make art: if you are commissioned as a freelancer to make art, at default what you create will be copyright to you, and your client gets a permission to use that art for the purpose they commissioned it. If the client wants to own the copyright, they’ll need a written document signed by you that transfers copyright from you to them. And yes, professional artists do charge more for that transfer.
Is my copyright recognised in other countries? Yes, provided your country and the other country are members of the Berne Convention for the Protection of Literary and Artistic Works. Under this treaty, all signatory countries agree to recognise copyrights from other signatory countries. Since the Berne Convention currently has 172 signatory countries, in the vast majority of cases when someone else uses your work online, they’re doing so from a country where your copyright is recognised and can be enforced in that country’s legal system.
What does it mean to have a copyright? As a copyright owner, you have exclusive rights to deal with your work. The precise rights may vary depending on the type of work and what jurisdiction you’re in, but fundamentally in the context of reposting they are:
the right to make reproductions of your art (ie., make copies); and
the right to communicate your art (eg., transmit it to or through a website).
These rights are exclusive to you meaning you are the only person who can copy and transmit your art. Anyone who wants to make copies of your art or upload it to a website will need your permission to do so (and you’d be within your rights to charge money for that permission if you wanted), otherwise they risk infringing your copyright. Which brings us to the next part.
PERMISSION VS. INFRINGEMENT
What’s a licence? A licence is a permission from you to another party that lets that other party use your art. For example, if you upload your art to Tumblr/Twitter/Facebook, you have granted Tumblr/Twitter/Facebook a licence to reproduce, display, and host your art within the Tumblr/Twitter/Facebook system. (Want to know the exact wording of that licence? It’s set out in the terms and conditions you agreed to when creating your Tumblr/Twitter/Facebook account).
That permission does not extend to every person, mutant, and unicorn to use your art. If you upload art to Tumblr/Twitter/FB to display, you’ve given a permission to that website, and no one else. Now, Tumblr/Twitter/FB allows other Tumblr/Twitter/FB users to share/reblog/retweet things from your page to their page, and that’s fine, they can do that because it’s a function of the website’s system which you’ve agreed to operate in. That is completely different to a person downloading your art from your page and reuploading it to their own account either on the same website or a completely different website for hits and likes, ie., reposting, ie., likely copyright infringement.
What is copyright infringement? Copyright infringement is when someone uses (eg., copies) all or a substantial part of your art without your permission, and when no copyright exception applies.
Internet defence myth: “The artist put their art on the internet, that’s permission for anyone to use it!” – NO. The artist put their art on a particular place on the internet (ie., their own website, own Tumblr, own Pixv) on their terms. That is not permission for anyone on the internet to download and use their art. If you find some art online that you really like and want to use, contact the artist and ask them.
Internet defence myth: “I changed 10% therefore it’s okay!” – NO. “Substantial part” does not work like that, it’s not about how much you’ve copied, it’s about what. If what you’ve copied is the key, distinct, or essential part of the work, that will be a substantial part even if it’s only 1% of the whole picture. Think of “The Scream” by Edvard Munch: the screaming face is, proportionally, a very small part of the larger picture, but it is the most recognisable and distinctive part. Now, what is and is not a substantial part gets very subjective, but in the context of reposting where a user reposts a whole picture, or crops the edges to remove a watermark/copyright notice/artist credit but keep the pretty art that caught their eye in the first place? That is clearly a substantial part amounting to copyright infringement (and in some jurisdictions, an infringement of laws regarding artist attribution and/or metadata).
What’s a copyright exception? An exception to copyright is a situation where the use of your art meets certain criteria that the law says using art without permission is allowed.
Internet defence myth: “It’s fair use!” – Are you in the United States/South Korea/Israel/other fair use country? If so, then sure, let’s talk fair use. If you’re not in a country with fair use, then you do not get to claim fair use. No fair use for you, do not pass go, do not collect $200.
The majority of jurisdictions in the world do not have fair use. I’m not going to go into every country’s variation, but many (e.g., the U.K., Canada, Australia) will have fair dealing which is a very different creature to fair use. Basically with fair dealing, in order to not be an infringement of copyright, the use of an artwork without the copyright owner’s permission must be for a specific purpose, such as parody or satire, or criticism or review, as well as be fair. If the use of an artwork is not for that specific purpose, it is an infringement of copyright. Reposting art for hits and likes or aesthetics without any serious attempt at comment? Definitely not going to get the fair dealing exception.
For those in the U.S.A.: yes, you get fair use, but it’s a defence against copyright infringement, not a get out of jail free card. The number of times I see people slapping “this is fair use!” on things that are clearly not going to pass the test is ridiculous, and there’s a line of thinking around the internet that just invoking the words “fair use” summons a magic shield to ward off any legal action. It doesn’t do that. Yes, you can claim that what you’ve done with copyright material is fair use, but a copyright owner is free to disagree with your claim and, if they think they have a case, take legal action against you at which point the fair use argument will be tested in court (as the Star Trek Axanar guys found out the hard way – spoiler, judge said no fair use). Now, the fair use debate is huge and ongoing, and this is not the place for it, I’m just focusing on reposting. And in the vast majority of cases where art is reposted in its entirety for hits and likes with zero attempt at critique or parody, it’s likely that fair use won’t apply.
Internet defence myth: “Reposting is okay because it gives the artist publicity/exposure!” – NO. “Giving publicity/exposure” is not an exception for copyright infringement, and helpful as publicity/exposure is, it doesn’t pay the bills. Creating art is work, and just as I get paid to do my work, so should professional artists get paid for their work. There are plenty of think pieces and articles and comics on how harmful it is for the creative sector to be expected to produce high quality work “for exposure”. And when reposting is done without attribution or credit or a link back to the original artist/source, then the exposure “argument” is utterly worthless (and may also be an infringement of moral rights where applicable).
Internet defence myth: “I credited the artist therefore it’s okay!” - NO. Some artists may be all right if you repost with credit. Other artists are not okay with it. Check the artist’s website/statement/permissions, don’t just assume that they’re going to be okay with credit. As far as law goes, the fact that you credited the artists means nothing: you reposted the art without permission where no copyright exception applies, therefore you infringed copyright and the artist copyright owner can act on that.
Internet defence myth: “I’m not making any money I didn’t mean any harm therefore it’s ok!” - NO. As far as liability for infringement goes, none of that matters: you reposted art without permission where no exception applies, you infringed copyright. The fact that no money was made may be taken into account in terms of damages or remedies, but at the end of the day, copyright was infringed, and the artist can hold you liable for it.
WHAT CAN I DO WHEN SOMEONE REPOSTS MY ART?
You can take legal action, which yes, comes with costs, time, effort, and stress. That being said, as a copyright owner, you do have that legal right, and if your art is being infringed in a way that’s earning money for the infringer, court action would be worth considering. Get legal advice first.
In the majority of cases where you don’t want to get a lawyer but do want a repost of your art taken down, you have two options: contact the reposter and get them to take it down, or contact the website hosting the reposted art and get the website to take it down.
Contacting the reposter: A lot of artists seem to take the gentle, friendly, almost apologetic “could you please?” approach to this. That’s up to you, but I will suggest that although you should certainly be polite and courteous, you shouldn’t be afraid to be firm. (Do NOT be aggressive/insulting/rant in all-caps). You’re the copyright owner, you’re the one with the exclusive rights, you’re the one who can hold the reposter legally liable for the infringement. Send a calm, professionally-toned message/email stating that:
you own copyright in the named images (provide link to images on your official website/blog);
that you did not give permission for the person to reproduce the image and reupload it (list specific HTML links to where the infringing images are located);
that you request that the images be immediately deleted, and/or a new repost be made with credit, and/or an apology;
that if no action is taken or you don’t receive a response, you reserve your rights to further legal action.
Most decent people would, in response to such a letter especially from an artist they admire, respond and apologise and do as requested, hopefully having learned a good lesson. But let’s say you’re dealing with someone who doesn’t care, who sends back a ranty message with <insert>Internet Defence Myth</insert> and that you should be grateful that they like your work. What do you do then?
Contact the hosting website:Almost every social networking and filehosting site, certainly all the big-name ones like Facebook/YouTube/Tumblr/Twitter/Instagram/etc., have notice and takedownmprocedures built into their systems. These are methods by which copyright owners can send a notice to the website telling them that someone on their site is infringing their copyright, and the website will remove that infringing material.
The exact procedures used by Facebook/Tumblr/Twitter/etc., and places like RedBubble/Society6/Etsy/etc., vary. Some make you click through and fill in a whole bunch of form fields, some ask you to send an email to a specific address. Whatever procedure, the majority of these websites are based in the U.S., meaning that the procedure meets the requirements of the U.S. Digital Millennium Copyright Act (DMCA). Essentially, the DMCA grants websites immunity under U.S. law from infringement actions provided that they have and act on certain procedures regarding infringements on their website. The notice and takedown procedure is part of this procedure.
Even if you yourself and/or the reposter are not in the U.S., if you want the website to take down the repost you will have to go through the DMCA form. Importantly, when you go through the process there will not be someone at the website’s offices making a legal judgment on whether or not a repost infringes copyright; all that matters is that you, the copyright owner, have sent in a correctly filled form/letter stating that the website is hosting material that infringes your copyright.
Second important point: whether you file a notice through a website’s reporting form or send in an email, that notice/email will very likely be shared with the reposter. As the DMCA process requires that you include your full name and contact details, this means your personal details will likely be given to the reposter. If you’re comfortable with doing this you should do so, however some artists understandably don’t want that personal information sent to a disrespectful reposter. While I certainly don’t advise making up completely false ID information to file legal notices (amongst other things, it’ll give the infringing reposter reason to file a counter-notice, see below), it may be worth using instead of your full legal name, the online handle your art is known by, your secondary email, a P.O. Box address, or try generalising your address to a city, state/province and country. If this approach is rejected by the form, you’ll just have to fill in your contact details properly. If you’re a professional artist with an agent or lawyer or other authorised representative, that’s easier: you can name your representative as a contact instead.
Links to major social network notice and takedown forms
Facebook: Report A Violation or Infringement of Your Rights. Form-fill notice. You do not need a FB account to file a notice.
What right is being violated or infringed? Check Copyright then (presuming you are reporting an actual image, and not someone using your idea or style which can’t be protected by copyright) Continue with your copyright report
Copyright Report Form: Click I found content which I believe violates my copyright then Please click here to continue with a copyright report
Contact information. Fill in all the fields, and include direct links to the infringing material on Facebook, as well as a link to the image as it appears on your official website/blog.
Click Yes at the bottom then enter your name before hitting Send.
Twitter/Vine/Periscope: Report copyright infringement. Form-fill notice. Note that it requires a Twitter account, and you have to be logged into Twitter to file a notice, so the notice will be linked to your account. Note also that Twitter says that they will send a copy of all DMCA notices to Lumen for transparency (with your contact information redacted).
Tell us about yourself: Click I am the copyright owner. This opens more form fields below.
Contact information: fill this all in.
About platform of infringing material: Click Twitter/Vine/Periscope as appropriate.
About your copyrighted work: Give the title of your original work and a link to your official website/blog where the original image can be viewed.
About the infringing material: Click Tweet/Moment/Profile image as appropriate. This will open another form field for you to give the direct link to the infringing Tweet/Moment/Profile. There is also a form field for you to describe how your image is being infringed (you can say “[username]’s Tweet has reproduced my copyright image without my permission” or something to that effect).
Required statements: Click both boxes, type in the exact statement as required by the form, and type your name (try your online handle?) otherwise Twitter won’t let you submit.
Instagram: Copyright Report Form. Form-fill notice, that is almost exactly the same as Facebook’s notice form. Does not require an Instagram account to file.
Click Continue with your copyright report then I found content that may violate my copyright then Please click here to continue with your copyright report.
Contact information. Fill in all the fields, and include direct links to the infringing material on Instagram, as well as a link to the image as it appears on your official website/blog.
Click Yes at the bottom then enter your name before hitting Send.
Tumblr: DCMA Copyright Notifications. Form-fill, but less detailed than the ones previous. Note that Tumblr explicitly says that the form is for external content that has been reposted on Tumblr without your permission (eg., it was taken from your website/Facebook/other non-Tumblr site and someone posted it to Tumblr). (They have a separate form for stuff you posted to your Tumblr account and another Tumblr user has reposted without attributing you.)
URL of infringing work or material: give the exact HTML link to the infringing image file on Tumblr.
Source URL for work (optional): I’m actually not sure what this is referring to (Tumblr, you and your inexact drafting, why) but it’s an optional field, so it’s not necessary to fill it in.
Add more exact URLs to other infringing works if necessary.
Description of work claimed to be infringed: Give the title of your copyrighted work, maybe the year you created it, and a link to where it may be viewed on your official website/blog.
Contact information: as usual.
Click all three of the click-boxes, and your full name (I’m not sure if typing your online handle as a pseudonym will suffice?) and hit Submit Notification.
As you can see, while the exact boxes and click throughs may vary, each website is asking for the same DMCA requirements: contact details, link to infringing material, link to your original material, legal declarations, and electronic signature. Etsy also has a form system, but other websites (eg., RedBubble, Society6, eBay) require you to send an email to their designated email address. This email has to fit the requirements of the DMCA, and a simple Google search for “DMCA sample notice” will turn up plenty of examples with wording you can use.
NB: The DMCA notice is a notice under U.S. law, and thus should only be used with websites subject to U.S. jurisdiction. If you send a notice saying “this is official notification under section 512© of the DMCA to remove infringing material” to, say, WeChat, or the website of the local community of artists in Canada or Singapore or France, you’llaccomplish nothing except maybe giving a lawyer a good laugh.
What happens when you file a notice: The website should take down the infringing image file you have notified them about. How quick this is depends on how well the website is managed, although the big social media sites are fairly prompt and will typically take down infringing material in 24-48 hours.
Counter-notices: When infringing material is removed, the reposter who put it up would be sent a notice saying that it has been removed, and why. Under a typical website’s DMCA notice and takedown procedure, the reposter may, at that point, send in a counter-notice saying that the original takedown notice is incorrect (eg., that the person claiming to be the if they truly believe they were not infringing copyright (ie., that they had permission from you to upload the image, or their upload comes under a copyright exception). If that happens, the website will forward the counter-notice to you and give you a 10-14 days to come back to them with a legal document saying that you have commenced legal action for copyright infringement against the reposter, or a court order that prohibits the website from reinstating the material. If you don’t get back to the website with such a document, the website will put the material back online.
In theory, this means that even though you have successfully filed a notice to have an infringing repost taken down, the reposter can, if determined or malicious enough, get it put back up. I have no idea how often counter-notices are used, although I’ve seen some commentary that counter-notices aren’t as common as often as people think, particularly when it’s clear that the infringer is infringing copyright. If you do get a counter-notice, your only option to get the infringing material taken down again and stay down is to deal with the reposter and potentially commence legal action. Sometimes this may be worth it, particularly if you have a good case for infringement and the reposter has maliciously sent the counter-notice when they have clearly infringed copyright, because the reposter may have then exposed themselves to extra penalties in a lawsuit. Sometimes it might not be worth it. This, however, is for you yourself to decide, and maybe get private legal advice about.
Reposting is incredibly frustrating for artists, especially when artists don’t even ask people to pay them for the privilege (even though artists have every right to if they so wished), they just want a credit or link back. Do the right thing: if you want to repost, ask permission from the artist, make sure you include full credits to them and links to where people who like the art can contact the artist. It costs hardly any effort to do that, the artist will be grateful and likely create more art for you to enjoy – and you won’t be exposing yourself to any potential legal action.
Artists, it’s your art, you own the copyright in it. Don’t hesitate to use that power where necessary.
This post is general information only, not legal advice. Anyone who needs legal advice specific to their situation should consult a lawyer.
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