Copyright infringement; find it, get it removed

Updated JUNE 2017

Good article by lawyer Kiffanie Stahle, on how to send a DMCA takedown: https://theartistsjd.com/dmca-takedown-notice/

HOW DO ARTISTS FIND INFRINGEMENTS OF THEIR WORK ONLINE?

Accidentally run across it
Someone tells you
Searching their name or artwork titles.
On Pinterest, if your work has been pinned there by someone, there is an option now to ‘search for similar images’.
Reverse image search.

REVERSE IMAGE SEARCH

Using the Chrome browser, right click an image and choose Search Google for Image. If there is a right click disabling, google likely can’t see the image and you will need to get the actual image url (explained later in this post).

See Paula McManus’s journal about a very useful search tool that also relies on a google reverse image search: http://www.redbubble.com/people/paulamcmanus/jo...

The tool: http://jarred.github.com/src-img/ I use this, it’s pretty effective, and saves time.

Google Images: Search terms and names.

Google instructions on using the reverse image search: http://www.google.com/insidesearch/searchbyimag...

Plagiarism Today: reverse image search: http://www.plagiarismtoday.com/2012/02/06/googl...

Tin Eye: http://www.tineye.com/

Firefox addons: https://addons.mozilla.org/en-US/firefox/addon/...

Finding Your Work On Pinterest: http://pinterest-out.blogspot.com/2012/05/findi...

This search site may help you find infringements on Teechip, a site that sells tee shirts but has no catalog of what’s being offered: https://teespy.com/search-teechip-campaigns/

Warning!

You may find weird looking sites in your searches, that may be scraper sites, which can infect your computer. Look at Google’s CACHED web page view (pull down arrow by link is an option on most search results). Or, look up the odd site’s domain name and you may find out it’s best not to go there. Scrapers present relatively low infringement problems only because the quality of the images are so bad, and any viewers who try to download the images will probably get a virus. But, they present a virus risk, so you will have to weigh the risks yourself. Also be aware that if you did report an infringement directly to a scraper site, all you would likely accomplish is to expose your name and email to the scraper for future spamming, etc. (As with other sites, you should really report infringements to the site’s HOST, though.)

Report scrapers or sites with malware, etc.

http://www.google.com/safebrowsing/report_badware/

https://docs.google.com/forms/d/14CP_1An9rWKjJ8...

FINDING WRITTEN MATERIAL

Plug a few lines into google’s search bar.

Or, use: COPYSCAPE http://www.copyscape.com/ or PLAGSPOTTER http://www.plagspotter.com/

WAS YOUR ART DERIVED FROM POP CULTURE, ETC?

Before sending a Takedown or C&D Letter, be sure that your work is truly yours and not derived from someone else’s in the first place, otherwise sending a takedown could expose you to accusations of perjury. Fan Artists should be especially aware of this, as much fan art is ‘derivative’ (infringing). There is more about Fan Art later in this post.

CEASE AND DESIST LETTERS

C&D letters may or may not be something you want to do. Some people politely and informally ask the infringer to either remove it or credit them. Some infringers ignore polite requests, even retaliate. A C&D letter not from a lawyer may be ignored. Hiring lawyers for everything is expensive. Many artists skip straight to a DMCA takedown. If you DO send a C&D yourself, see: "C&D info from Plagiarism Today: http://www.plagiarismtoday.com/2007/10/12/copyr...

There are law firms that handle C&D letters combined with a ‘bill’ for use of the image, and make their money from taking a percentage of money collected. Even some online services now claim to do this. Choose such a firm carefully if you do it.

SUING?

IF you find a serious infringement and you might sue, see your lawyer before you do anything. Don’t send a takedown first, which may only alert the infringer and make it harder to gather evidence.

DOCUMENT THE INFRINGEMENT

Even if you don’t plan on suing or sending a bill, document the infringement for your own records.

Using Internet Tools to Gather Evidence of an Infringement: http://www.photoattorney.com/?p=3934

How to get the image URL: http://www.myspacegens.com/handler.php?page=tut... If you don’t get the image address/url removed, the image may stay on the web host’s servers.

TAKE A SCREEN SHOT

Hit your Print Screen key which copies all that’s on your screen. Open your photo editing software like Photoshop, open New blank document, and Paste (Control+V). Flatten it and save it. Screen shots should show your computer’s clock so it’s dated. IF you should feel the need to post your screenshot online or share it with anyone you can create a version of it with private stuff blocked out, but save the unaltered one, too.

How to take a screenshot with an ipad: http://m.wikihow.com/Take-a-Screenshot-With-an-...

Jeffrey’s Exif Info: http://regex.info/exif.cgi This is not something you will always need to do but good to know it exists.

DMCA and similar, in other countries

European Union’s counterpart to the DMCA: http://eur-lex.europa.eu/LexUriServ/LexUriServ....

SITE HOSTS

Many sites have a DMCA takedown related page with an online form or an email address. While convenient, the site’s own page may hide the takedown from the actual host. If you’re fine with using a site’s takedown page, great. If you have problems or want the host to know it’s a repeat issue then go to the host. Many hosts’ sites also have an online form.

Some sites have a Report Image link on the page. On others it may be in the Terms of Service, Policies, Copyright page, Legal page, Contact page, etc.

US Copyright office now has 2 lists: Old list: http://www.copyright.gov/onlinesp/list/a_agents... and new list: https://dmca.copyright.gov/osp/ BOTH are accessible now from this starting page: https://www.copyright.gov/dmca-directory/

My List: I’ve compiled a list of site hosts’ takedown info that has a few I hadn’t seen elsewhere. Includes info on removal from search engines. http://www.redbubble.com/people/cschnack/journa...

Where to look up a site’s host:

Who is Hosting This: http://www.whoishostingthis.com

Whois Australia: http://whois.ausregistry.com.au/whois/whois_loc...

http://www.networksolutions.com/domain-name-reg...

http://www.whois.com/

http://www.dnsstuff.com/

http://www.arin.net

http://domainsigma.com/

Shortcuts to finding a site’s DMCA agent: http://www.plagiarismtoday.com/2012/03/29/short...

Invalid WHOIS Data: Who Is Responsible: http://www.circleid.com/posts/invalid_whois_dat...

WHAT SHOULD BE IN A DMCA TAKEDOWN NOTICE, IF YOU WRITE YOUR OWN AND SEND THEM BY EMAIL?

CREATE A TEMPLATE (FORM LETTER), with necessary language. Example below, fill in your info where there are parentheses. OR, just use the site’s own wording or online form, if they have it.

NOTE: In view of Lenz v Universal, a 2015 court decision, it may be necessary to include a statement that you have evaluated whether the infringement could be FAIR USE: http://fairuse.stanford.edu/overview/fair-use/f... and have determined it is not. In Lenz, the ‘free speech’ org, Electronic Frontier Foundation, sued on Lenz’s behalf when a video she uploaded was taken down for infringing on a song. The 9th circuit court determined a takedown sender ‘must consider fair use first.’ The decision has been criticized as outside the law’s letter and intent.

To copyright agent (site host)

This is a DMCA takedown notice. As a site host you retain safe harbor from liability for 3rd party posts/uploads if you remove them expeditiously when you receive a takedown notice. Digital Millennium Copyright Act, 17 USC 512 ©(1)(A)(iii), https://www.law.cornell.edu/uscode/text/17/512

A member/user on a site hosted by you is illegally using work owned by me. (Add their member’s Name if known; very briefly describe your work, state any additional factors of the infringement such as alterations, removal of your signature, whether they are selling it, etc.)

The illegally used work can be seen here: (Links to infringements, and “image url’s”.)

My own authorized online location of the image is here: (Link to your work such as your Red Bubble page that it’s on.)

The infringement does not qualify as ‘fair use.’ 17 USC 107 https://www.law.cornell.edu/uscode/text/17/107

(If the infringer has removed your watermark or other copyright management info, add this:) The infringer has illegally removed my watermark, which is copyright management information. (17 US Code 506 (d), can be a criminal violation). https://www.law.cornell.edu/uscode/text/17/506

I hereby state in good faith and belief that the disputed use of the copyrighted material or reference or link to such material is not authorized by me, or by law, e.g., does not fall under “fair use”.

I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner of the copyright that is infringed.

( Your Name and limited contact info such as email address)

A NOTE ON SOME SITES CLAIMING THEY REQUIRE YOUR HOME ADDRESS A few DMCA forms/instructions claim that they require a home street address. If it’s a fill-in form you may have to fill it in; a PO Box is preferable. When sending takedowns by email, I have, so far, never had a takedown refused due to lack of address, even if their info claimed I had to provide it. It’s debatable whether a site can insert this “policy” which isn’t technically required by law. If you’re concerned about email privacy, use a separate email address for this.

MOST sites hosts comply within days once they get a properly submitted DMCA takedown notice.

RESOURCE LINKS

Statutory Safe Harbors and User Generated Content: http://copyrightalliance.org/2015/04/statutory_...

Copyright laws around the world from Copyright Watch site: http://copyright-watch.org/

Copyright Laws by Country: http://en.wikipedia.org/wiki/Category:Copyright...

US Copyright Law: http://www.copyright.gov/title17/

Yes, you CAN be sued for infringement: http://www.roniloren.com/blog/2012/7/20/blogger...

Removing watermarks, copyright info, signatures, etc can get you sued more: http://www.photoattorney.com/?p=163 by Carolyn E. Wright, on Photo Attorney.

Copyright Myths and FAQs: http://libguides.trumbull.kent.edu/content.php?... (long and detailed)

10 Big Myths about copyright explained: http://www.templetons.com/brad/copymyths.html by Brad Templeton (short and sweet)

Photographing Sculpture in Public Places not the same as Public Domain: http://www.sculpture.org/documents/scmag05/may_...

Findlaw on Parody and Fair Use: http://corporate.findlaw.com/intellectual-prope... Parody/Fair Use is a defense if sued, not prevention from being sued.

Graphic Artists Guild on Right of Publicity: https://graphicartistsguild.org/tools_resources...

7 Common Questions About DMCA Counter-Notices: http://www.plagiarismtoday.com/2010/06/03/7-com...

The National Press Photographers Association has distilled the essence of finding a host and writing a takedown. You may find you need more info than this at some point, but the majority of the time this could be enough. https://www.nppa.org/page/5617

BUYING ART OR REPRINTS DOES NOT MEAN BUYING COPYRIGHTS

“First Sale Doctrine.” (US Copyright law; not sure how it works in other countries.)

“The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109 (particularly a &c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction.” http://www.justice.gov/usao/eousa/foia_reading_...

10 Public Domain Misconceptions: http://www.publicdomainsherpa.com/10-misconcept... Public Domain Sherpa

Fan art not transformative: http://www.esc.edu/library/services/copyright/f... (The important difference between Transformative and Derivative.)

Photo Attorney: http://www.photoattorney.com/

You Thought We Wouldn’t Notice: http://youthoughtwewouldntnotice.com/blog3/ Big companies that steal from artists.

US Copyright office FAQ page: http://www.copyright.gov/help/faq/

Copyright Basics PDF US Copyright Office: http://www.copyright.gov/circs/circ01.pdf

Why You Shouldn’t Mess With CMI: http://www.nolo.com/legal-encyclopedia/why-you-... The law this article refers to is 17 USC 1202: https://www.law.cornell.edu/uscode/text/17/1202

Article on the broad subjectivity of “fair use” across court cases: http://illusionofmore.com/ruling-fair-use-axe-t...

IMAGE PROTECTION

Old advice to use clear layers, disable right clicking, install no-pin codes, or only upload small images, etc, are not as effective anymore. More people know how to bypass them, and the small images are still very usable for many infringing uses. Plus, infringers don’t care if their buyers get a blurry reprint! Another reason website protections may fail is that search engines and social media display images large now, easy to copy and pin right there. Metadata is often stripped when you, or an infringer, uploads or shares an image so don’t count on it.

Despite the fact copyright notice is not required anymore, its deterrent effect is still beneficial. Removing it is more work than most infringers will do. If they do remove it, they may be liable for higher money damages, (willful infringement). Removal can even be criminal. (17 USC 1202) https://www.law.cornell.edu/uscode/text/17/1202

A large watermark that is part of the image (not the clear watermark option provided by a website) is the most effective, but precludes selling that image as reprints or products on Print On Demand sites. For display only, more artists are using large watermarks due to increased infringement.

You can’t prevent ALL infringement, but you can substantially decrease it.

Skinny Artist, How to Watermark Images: http://skinnyartist.com/how-to-watermark-your-i...

Plagiarism Today, How to ensure your watermarks are secure: https://www.plagiarismtoday.com/2013/08/01/how-...

MYTH OF EXPOSURE

It’s not “free advertising” for you, if they don’t credit you and link back.

It’s not “sharing” if they are really using your work for something artists normally get paid for, like illustrations, ads, etc.

Some infringers use your work to promote things you don’t approve of.

Some may claim authorship, raising doubts.

It can destroy licensing deals because the material is already “used.”

It’s not a compliment to have your work swiped.

Artists Bill of Rights: http://artists-bill-of-rights.org/ Among other issues, one is “rights grabbing,” a problem common to competitions, where artists are told that giving the work for free will pay off in “exposure.” While voluntarily giving up your rights this way means they’re not infringing, it’s still a bad deal!

Your Takedowns published (sometimes): Some artists have been intimidated by google’s publishing of DMCA takedowns. IMO it’s best not to give in to that. My first exposure to the takedown issue WAS from the free speech side, when I was in consumer advocacy. It is abused sometimes, but the majority of these takedowns are not silencing free speech, they are just to get infringements removed. I hate what has happened to some free speech orgs, in order for internet giants to have more free rein to make money off other people’s stuff. https://lumendatabase.org/

Do “great” artists have to steal? No. Even if the slogan were proven to be uttered by Picasso and proven that he meant what it implies, it’s still just a slogan. http://quoteinvestigator.com/2013/03/06/artists...

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