Sunday Mailbag

Q: I’ve seen your work used on websites without any credit to you and figure it is probably without your permission. Isn’t that copyright infringement? How do you handle that sort of thing?

A: The Interwebs are a both a boon and a bane to visual artists when it comes to people stealing your artwork and using it without your permission. It’s a bane because if you put your artwork on the internet, it will get stolen… I guarantee it. It’s a boon because there are billions of people on it and some of them will be your eyes and ears (well, eyes anyway) and alert you when someone is stealing your work. Just the other day I got an email from a gentleman named Shawn Braley telling me this site was using one of the spot illustrations I did for MAD Kids of a school lunch lady and posted in a recent Monday MADness as an illustration for an article. I get those kinds of emails now and again, and many thanks to those that send them to me.

What can I do about it? The answer is, that depends.

Can I make them remove the image? If the website in question is here in the U.S., or at least the company or persons purporting to be the authors of the website are U.S. based, they are in clear violation of U.S. copyright law in using a piece of my artwork without my permission. But, do I really have any power to make them take it down? Well, if they don’t care about breaking copyright law, then it becomes more difficult. Just because they are breaking the law doesn’t mean my informing them I am aware of it will make them care. It’s likely they know they are doing something wrong, and maybe it means nothing to them. Most of the time I find that offending copyright thieves steal images expecting not to be caught, and when they are they plead ignorance and will remove the image when asked. Some really are ignorant they are stealing, but most know it’s wrong and do it anyway because “everyone does it”, as if that makes it okay.

My first move is an email to the offending site with a link to my original image telling them this is a copyrighted work and asking politely for it to be removed. Four out of five times this works. I usually get the old “oh, I didn’t know that was copyrighted, I got it from some other site that was using it”. I could point out that unless they created the image themselves they don’t own it and EVERYTHING ELSE is copyrighted by someone, I get crickets chirping, so I don’t bother pointing that out. I just ask them to remove it. Sometimes they ask if they can use it if they give me proper credit and a link. I will occasionally agree to this but more often I say no, not without compensation. I will usually grant someone permission to use one of my images on the web for free with proper credit/link, but only if they proactively ask my permission. Once they’ve stolen it, I usually make them pay to continue to use it.¬¨‚Ć They never pay, so they take it down.

What if they ignore my email? I have two options. One is to have a lawyer send them a second, more threatening and more official email. That costs me money, so I seldom go that route unless I really think the offending website is being malicious or somehow actually profiting from the image in some way. The better option is to contact the web host of the site. If that is U.S. based, they can demand the website remove the image. The response varies depending on the host company. Bigger hosts are more apt to do something than smaller ones. If they are outside the U.S., they will probably do nothing or even respond. Many countries are part of the Berne Convention which spells out international copyright law, but in reality few other countries will go to bat for copyright owners outside their borders.

Can I demand they pay me for using it? Actually I can legally, but only if I have copyrighted the image officially with the U.S. Copyright office. It’s a little known fact that, while in the U.S. you automatically own the copyright to any intellectual property you create the moment you create it, getting compensated for its infringement is almost impossible unless you have physically registered the work. You can do this in batches by grouping pieces of work into logical collections, like all the work done in the year 2012 for example, and pay only one copyright registration fee (currently $45.00). It’s not that expensive, and it gives you a much stronger legal footing in demanding compensation from someone who steals your work.

How realistic is it that you can get compensation even if you have registered the work? Not very in most cases. This is the reason so many people feel they can steal copyrighted work on the Internet with impunity. It’s almost impossible to legally prosecute someone for the infringement, and in most cases nowhere near economically viable to do so. If you are lucky, you could get a court to agree to pay you say $100 for the use of a stolen image on some website (that’s top dollar, $25 is more realistic). If it costs you $1000 in legal fees to accomplish this, then it makes no sense to try. It can easily cost you that, as you’d need to hire a lawyer in the state of the offender, and then get the case to and through court. You’d need to have a lot of time on your hands and a large pile of disposable money to pursue even a few of these transgressions.

So why bother? Two reasons. First, to stand up for what’s right. It’s illegal and a tremendous disservice to the creators of intellectual property to steal their work and infringe on their copyright without permission and at least credit if not compensation. I’m hoping I educate a few people about asking permission first, especially if I point out that I usually grant permission as long as I am properly credited and a link provided. After all, I am selling a book on the other end of that link, so that traffic does have a possible value to me. I find that a fair trade off in most cases. The other reason is more pragmatic. It’s also a little know fact of copyright law that in order to retain control of the copyright of your work, you have to be shown to defend that copyright when it’s being infringed. That sounds odd, but one defense copyright infringers use successfully is to demonstrate that the owner of a copyrighted work was aware of its being infringed upon but did nothing to protect their rights. A copyright owner can’t decide who they want to sue over infringement and who they want to let off the hook. If someone can show the copyright owner didn’t care if their work was being infringed on by others, that same work is very hard to sue over with another infringer. The again, it’s not too easy to prove a copyright owner knew about instances of infringement and did nothing, but not impossible.

It’s largely a lost cause, since I am sure I only find out about a fraction of the infringement of my work going on on the interwebs, and I don’t have time to scour them for offenders. However that does not mean you do not fight the good fight. I have saved form letters for offenders, and it only takes me a minute or two to insert then specifics and send it off. If nothing else, I can produce these letters should anyone attempt to later prove I never tried to enforce my copyrights on a given piece. So, when I get alerted to an instance of infringement, I ALWAYS send an email at the very least.

As to the site Shawn informed me about using that “Lunch Lady” image? They are playing with fire, as the copyright owners of that image is not me personally but actually Time Warner/MAD Magazine/DC Comics, and they have a couple of floors of lawyers who have nothing to do except go after people for copyright infringement. I sent them an email informing them of this… I see they still have not removed that image. Not smart. My next letter will be to MAD‘s legal folks, who take a dim view of that sort of thing.

Thanks to Grant Jonen for the question. If you have a question you want answered for the mailbag about cartooning, illustration, MAD Magazine, caricature or similar, e-mail me and I’ll try and answer it here.