This article is by Brian Sherwin, regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Huffington Post, The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint, Vandalog and Art Fag City. This author's views are entirely his/her own and may not reflect the views of BoldBrush, Inc. You should submit an article and share your views as a guest author by clicking here.
The Art4Love scandal has sparked a lot of debate about copyright and the rights artists have to protect images of their artwork from copyright infringement. I'm finding, yet again, that artists -- in general -- know little about copyright overall. There is widespread confusion about copyright. The old myths of what is -- and is not -- copyright infringement have crawled out from behind the walls. Thus, I feel that it is important to take on each issue step-by-step. I know I have covered copyright registration before -- but clearly I need to look at key points one at a time.
For those who don't know -- the Art4Love scandal involves a commercial art site, and its alleged owner -- Chad Love-Lieberman, that allegedly infringed on the copyright of over 300+ artists from the deviantART.com community. The site apparently copied images of art from deviantART, changed the titles of the artwork, and failed to credit the artists for their work. My understanding is that Art4Love promoted the art as having been created by the site owner and involved names of 'made up' artists as well. Note: Art4Love has been shut down.
One of the biggest copyright infringement myths I've seen floating around the Internet over the Art4Love scandal deals with profit. That myth being, "If profit was not made it is not copyright infringement." In other words, people are saying that Art4Love may not have committed copyright infringement if the site had not made profit on the listings of 'stolen' artwork. Wrong, wrong, wrong... and this attitude has been proven wrong in court.
A recent deviantART press release does not help the matter -- stating, "As a note of caution, we don't have all the facts. For example, there is not yet confirmation that any prints were ever sold," among other things. It does not matter if Art4Love sold the prints or not! Copyright infringement is copyright infringement. If Art4Love actually sold prints, the artists - at least those who registered copyright prior to the infringement - would likely receive more in statutory damages. However, even if prints were not sold it is still copyright infringement and the artists involved may still have a case against the website and owner -- and receive damages.
Why is it copyright infringement? Because the artwork was re-titled, the name of the creator changed, and it was placed under a listing on a commercial art site -- all, allegedly, without the permission of the artists behind the work. Point blank -- even if Art4Love failed to sell any prints involving the 'stolen' images the site and owner may still get hit hard if a case goes to court. Why? Because the those behind the alleged infringement "willfully" and "knowingly" committed copyright infringement. Furthermore, the act of listing images of the art on a commercial art site for sale harms the commercial value of the infringed images -- especially when you considered that titles and authorship were changed to deceive the public.
In addition to the above, I have a feeling that if this situation goes to court the judge will likely want to make an example of Art4Love and its owners. Commercial art sites have not been tested much in regard to copyright infringement in court. So it is safe to say that a judge may want to send a message to other copyright infringers online -- especially owners of commercial art sites who may directly or indirectly profit from situations involving copyright infringement.
In fact, the outcome of a case like this could change the commercial art site industry -- forcing social art sites and other commercial art sites involving listings of prints for sale to do more in order to protect the copyright of their members as well as the copyright of individuals and companies who are not members of the site. In that sense, I truly hope that the Art4Love issue is resolved in court.
The whole 'if I don't make money on images I'm not violating copyright' idea needs to be cleared up. Point blank --the infringement of copyright is not excused simply because profit was not made. The motivation does not matter. True, there are safeguards for news media and other sources (for example, most art sites have TOS agreements that stipulate that they can distribute uploaded images for site promotion) -- but uploading images of the works of others simply because you feel "art should be shared with everyone" does not mean that infringement has not occurred. Point blank -- copyright infringement is illegal.
As for profit -- and if Art4Love made profit or not -- violating copyright is illegal no matter how you try to validate it. True, there is the defense of 'fair use' -- but I fail to see how Art4Love would be able to use that defense adequately. As for 'fair use' -- people need to stop thinking it means that copyright infringement is acceptable -- or that infringing on copyright is "protected because of fair use" -- or any of the other variants of this nonsense that I've seen over the years. Point blank -- most who wave the banner of 'fair use' -- especially online -- don't know what they are talking about... or are doing so because the myths surrounding 'fair use' benefit their practice and business.
In fact, 'fair use' is merely a defense against a claim of copyright infringement -- it is the defense you would likely use in court if someone filed against you for using a copyright protected image. It is not a "protection outside of court", as some suggest.
More copyright topics -- and copyright / copyright infringement myths busted -- to come.
Take care, Stay true