What to do about artists who "rip off" or "pass off" your art?

Over the last 20 years of writing this blog I've seen very many examples of artists ripping off other artists (or art societies) - or "passing off" other artists' work as their own - and I've written about this, sometimes at length. (see the reference section at the end)

Yesterday another example was sent to me - which is now "done and dusted" but was drawn to my attention and I thought was worth highlighting to you all. However I thought it might be more useful to put some context around it.

This post is about

• WHAT IS "ripping off" or "passing off" in the context of art - examining definitions of:
• forgery
• imitation
• passing off
• WHAT HAPPENED in the latest example
• TOP TIPS for what to do should artwork being copied happen to you or your friends.

[NOTE: This post has been amended since first published]

Who are artists who "rip-off" or "pass off"?

I have at last found a good use for AI. It does well in summarising definitions from a range of places.

First let's look at "rip-off artists"

In the art world, "rip-off artists" can refer to two main categories: 

• those who create fraudulent copies of existing works for profit (forgers) and 
• those who imitate other artists' styles or ideas without significant originality. While artists have long drawn inspiration from others, a line exists between homage and plagiarism, and the latter can be considered a form of artistic "rip-off."

I would add that "plagiarism"(the latter)  is particularly rife in the equine, canine and botanical art worlds where exactitude in representation is very much prized. Those associated with animals seem to have quite a robust response when they see it!

This is what promoted this post (see below)

What's the difference between fraud and imitation?

Characteristics of Forgery

• Forgery involves creating a fake artwork that is intended to be sold as an original by a famous artist.
• Forgery of artwork by an artist with a high market value can generate income
• Forgery is illegal and can result in significant financial and reputational damage to 
• the art market 
• the institutions that authenticate art
• the artist 

Characteristics of Imitation (aka Plagiarism)

"good artists borrow, great artists steal" Pablo Picasso

Imitation for learning - emulating the work of great artists - is a traditional exercise frequently used to develop skills eg learning to draw like the old masters.  

• I've done it, you learn a lot. 
• I remember thinking that that all those who talk about Van Gogh drawing at a furious pace have never ever tried drawing with a proper reed pen! see Van Gogh: Drawing media and techniques and More about Van Gogh and his drawings and drawing techniques

Cottage Garden, 1888
Vincent van Gogh (Dutch, 1853–1890)
Reed pen, quill, and ink over graphite on wove paper;
61 x 49 cm (24 x 19 1/4 in.)
Private Collection. 
Metropolitan Museum of Art - Vincent Van Gogh - the Drawings

AI says this about PLAGIARISM

Plagiarism is presenting someone else's work or ideas as your own, without giving proper credit. It encompasses using another person's words, ideas, or creations without attribution, whether intentionally or unintentionally. This can involve copying text, paraphrasing without citation, or using someone else's research findings without acknowledgement.

Basically taking somebody's else's original work and using rather too much of it and representing it as if it was your own.

Also...

Key aspects of plagiarism:

• Lack of attribution:
• Failing to properly cite sources is a core element of plagiarism
• It includes not only direct copying but also failing to provide appropriate credits
• Plagiarism is copyright infringement and can lead to serious penalties. 

AI says this about IMITATION

While artists often learn by studying and emulating the work of others, a "rip-off" in this context implies a lack of originality and a reliance on another artist's style or ideas without significant transformation.

Imitation can be a way for artists to find their voice or to explore specific styles, but when it becomes excessive or lacks originality, it can be seen as a form of artistic theft. 

While not always illegal, excessive imitation can damage an artist's reputation and credibility. It can also be a sign of a lack of creative depth or a lack of genuine artistic vision.

Using motifs and styles generated by others to create your own artwork - which is NOT a copy - is acceptable, but boring unless you do something genuinely new.

Imitating art to misrepresent yourself as an excellent artist is NOT OK.

Imitating art to say "here's my version" is fine. Particularly if the artist is "out of copyright"

• Here's my coloured pencil version of Turner's Snow Storm - Steam-Boat off a Harbour's Mouth. (Tate Britain)
• See Tonight Matthew I'm going to be JMW Turner..... (January 30th, 2008) which includes this sketches of Turner's painting. I was limbering up for my project on Turner later that year at the time.

A study of Turner's snowstorm seascape
coloured pencil on Arches HP, 8" x 10"
copyright Katherine Tyrrell

Characteristics of Passing Off

This is what AI says about "passing off" - which relates to the MISREPRESENTATION of your product as if it belonged to a brand or trade mark or other known way of identifying copyright/trademark protected goods.

It has TWO definitions - the legal version and the one that relates to art. It essentially relates to where a brand is established which can suffer harm.

First the legal version

Passing off is a legal concept, a tort in intellectual property law, where one party misrepresents their goods or services as those of another, often a well-known business, to mislead consumers. This can cause damage to the other party's reputation and financial well-being. Essentially, it's about preventing businesses from unfairly benefiting from the goodwill and reputation of another by falsely claiming association.

Which means you can't put beans in a can with tomato sauce and call it Heinx Beans.

Now for the art version. 

"Passing off" in the context of artwork refers to the legal concept where someone misrepresents their work as being associated with another artist or brand, potentially damaging the reputation and goodwill of the original creator. 

It's a form of intellectual property infringement, often used to protect unregistered trademarks and the reputation of businesses and individuals.

The notion being that those copying the art will not produce at the same standard - thus damaging the artist behind the original brand / trademarked / copyright protected art.

What happened recently

This is a recent example of outright / "no doubt about it" plagiarism.

Have a read of A bold and blatant brush-stroke-for-brush-stroke rip-off 

• written by Canadian botanical artist and art teacher Margaret Best 
• about an image - originally drawn and painted by Australian botanical artist Diane Emery.

As usually happens in these instances of plagiarism there were howls of outrage online and lots of people were determined to get the offending artist to take the image down - which she eventually did.

I've now seen the original - posted with Diane's permission on Margaret's blog post - and have also been sent a digital copy of the Instagram post. Plus I've received Dianne's permission to use the image in this post.

I did what I always do in these sort of cases. 

• I looked up the artist and studied both her website and all her social media. 
• I then looked at the two images side by side
• The copy had some slight but noticeable differences from the original (eg look at negative spaces - they are a major tell tale) indicating it was NOT in fact a digital copy - which these cases of "passing off" very often are
• In my opinion, there is absolutely no evidence (from her website and social media) to suggest that the offending artist had the skill to create the copy posted on her instagram.
• However, my conclusion was that the image on Instagram was very definitely a copy.

How the copy was made I can't say - because it is much better than virtually all the artwork on the website/social media of the artist who was "pretending" it was her own work. I'd describe her artwork as very typical of amateurs.

I do wonder if there is some element of digital manipulation or AI is involved. Maybe along the lines of "create a copy of this artwork"?

However that still counts as a copyright infringement if you claim it as "all your own work" as the artist did.  In this instance, the artist says 

"My inspiration was fall of course and also a photograph I saw somewhere online"

From which I conclude this particular artist has not a clue about the fact copyright infringement extends to copying somebody else's photo without their permission or a licence! 

She would have to be really naieve to believe that Dianne's painting - on an artist's website - was a photograph (notwithstanding it was obviously a digital image to get posted in the first place).

TOP TIPS for what to do if you see an example of copyright infringement

Most of what I'm going to tell you is explained in more detail on my web page about What to do about copyright infringement - for artists - which you might want to BOOKMARK!

 

What to do about copyright infringement - for artists

The threshold for taking action is:

• IF it is more likely than not that copying occurred
• ​IF the copying site is ranking higher than your site on Google
• IF the site strips out any information that identifies the content as yours and/or misrepresents content as being theirs
• AND if the artwork or other content which you think has infringed your copyright is substantially similar to your artwork.

 

WHAT TO DO if your artwork is stolen / plagiarised and your copyright infringed.

Be aware that MOST of the people who do this are rank amateurs without a clue that what they are doing is wrong. 

Many of them are kids - so don't ruin their lives by going OTT too fast. 

My regime is to 

• start off polite (on the assumption they're a kid or really ignorant)
• then get very firm and instruct them precisely what they have to do NOW!
• then outline what happens next if they do not get serious right now and act to take down the offending content. Some might see this as a threat. I just keep it strictly factual and tell them the end game for their site if they do not act immediately.

Sos this (in summary) is what you do (full version on the website).

Notify the person who is passing off your artwork as their own - and give them a chance to take it down ASAP. I normally specify that they must do this in the next 24 hours.   The amateurs typically take it down and tend to act promptly - maybe after some initial "faux" outrage that you should have caught them out! 

You can contact the blogger, webmaster and serve a takedown notice i.e. explain they are in breach of copyright - and ask them to remove the content immediately (or within a specific time period eg 24 or 48 hours).

​If I contact somebody who I think has plagiarised in error I tell them what happens next i.e. after 24 hours of my email being sent. (i.e. the process below re contacting web hosts; domain name registrars etc). That generally does the trick.

Whether or not you notify the plagiariser is a judgement call.

​​Beware of giving away an important email address. I use one used only for copyright notices.

If there is no email address on their website or social media, you can use WhoIs to find a contact address

• Do a Lookup using a Whois service to find out the details of the domain name registrar. Ideally you are looking to find out and make a note of the name of the person who registered the site, their email, their registrar, and the name of their host.
• you also want to identify the contact email or URL for where to report copyright infringement to the domain name registrar
• ​Bookmark a Whois site so you can use it - and make sure you use the relevant one for country specific domains

If they get bolshy or deny they have done anything wrong, reiterate what you have already said in very simple direct terms

Next step is to ratchet up the warning they get - and that's when they start behaving!

Believe me - this is the one that works like a charm every single time I've used it. 

My webpage provides a lot more details about how to do this - you're just getting the headings!

Bottom line - the warning is that if you don't do as you say, you can get their website / blog taken down because the sites listed below are legally obliged to act if proof is provided via the necessary forms.

NOTIFY RELEVANT 3RD PARTIES
- who can make a difference

All of the following assumes you are prepared to

• notify third parties formally
• AND create screen dumps and pdfs of the copied content
• AND complete copyright infringement or complaint forms online.

These are people who can really make a difference if the website owner is ignoring you

• notify Google (see below) and get the copied content removed from the index 
• notify Google Blogger 
• notify the blog software company's site 
• notify the company hosting the website that they are hosting a copyright infringement. 
• notify the domain name registrar that a website is infringing the terms of registration due to the copyright infringement. 
• notify the advertisers e.g. Google AdSense 

I've filled them in - I know it works!

Reference

Banner image for the Copyright for Artists section
of my Art Business Info for Artists website

Copyright for Artists - this was one of the first sections I developed for my Art Business Info for Artists website ten years ago - because of all the issues around it at the time.

• Copyright and artists' rights
• BASICS of Copyright infringement and Fair Use - for artists - if referencing the artwork of others, what are you allowed to do without getting into trouble
• How to protect artwork online - practical steps to prevent the risk of your artwork being stolen
• How to do a reverse image search - If you want to find out whether somebody has created copies of your photos or artwork on the Internet
• What to do about copyright infringement - for artists - if your artwork is stolen or plagiarised
• Global Conventions on Copyright - see the links below for  information about what how copyright applies in different countries

This is about "a mini viral storm about copyright infringement on the Internet"

• Copyright for Artists - Congdon vs Cody Foster  (October 21st, 2013)
• Copyright for Artists - Lisa Congdon artwork (December 11, 2013) - this is a very long post with lots of links to various legal matters and sources

More about Plagiarism

• Plagiarism: Major corporates vs Indie Artists (July 26, 2016)
• Plagiarism or 'passing off' - it's got to stop - this is a very long post which relates essentially to principles relating to plagiarism and derivatives. The post has been revised since first published for the reasons stated in the introduction to the revised post. The original post - and the revised version - were prompted by the daily painting movement and "Duane Derivatives". This post got a lot of visitors and an awful lot of comments. It includes definitions of both plagiarism and derivative art.It invites readers to have a discussion - with an educational intent - about what is and is not OK in relation to copying, plagiarism, imitation and derivative art.

Then there's the copyright infringement cases involving other artists

• Copyright infringement - recent lawsuits involving artists (January 5, 2016)

Plus how to deal with specific platforms

• How to complain about a copyright infringement on LinkedIn - and how to get it removed! (July 26, 2015)
• Plagiarism on Facebook (February 4th 2015) - This is about people who claim other people's artwork as their own - and highlights a case study of an example on Facebook. This is not uncommon. It's an issue which every Moderator of a Facebook Group needs to be aware of - and MUST take prompt action when it is highlighted with proof. This post focuses on:
• Why do people copy other people's images?
• How can you tell if somebody is copying?
• What should you do if you see somebody copying?

Other blog posts include

• Copyright infringement - why Courts make people pay - If you infringe copyright you can be liable for financial damages relating to: the financial benefit you derived through the use of the images; the financial benefit lost by the copyright owners (e.g. licensing fees) and/or a penalty for the abuse of copyright
• The difference between "copyright free" and "royalty free" - people often get confused about what these terms actually mean
• You cannot copyright nature - published after seeing a couple of blog posts which highlight some potential copyright pitfalls for artists who draw and paint nature
• Creating a signature on your art - make sure you sign your art - that makes it your art and not art that somebody else can claim as their own. If copyright is important to you, you really need to sign your work
• If you don't want your artwork stolen..... - Artists can learn a lot about how to handle copyright issues from photographers. That's because the frequency of copyright infringements in relation to photography is far higher than it is for artwork