Intellectual Property and You

About a week ago, after a very long day at work, I came home and just wanted to relax, eat, hang out and maybe do a little "work" on the computer. Unfortunately I received an email from a book author who had found out that the eBook publisher he was planning on using seemed to have a thing for "borrowing" artwork to be used as cover art. He had decided to match as many book covers to artists as possible and tracked me down in order to let me know that a painting of mine was being used on a book currently being sold on


I am not a professional artist. I like snapping photos, drawing and playing around in Photoshop. People occasionally like what I do and buy prints or download copies to be used as background for various devices, but never in a million years did I think that I would have to worry about someone actually stealing something from me. The truth is that when listening to or reading various discussions on "intellectual property" (IP) issues, I tended to listen with about as much interest as I would any a story about a 100-million dollar lottery winner. These are things that happen to other people. Little did I know....

Going From Bad...

So the work of mine that was used without my permission is my "Ares" piece that some of you who have followed me for a while will immediately recognize.

If I do a search of the Internet for this image, I find that it seems to be fairly popular. Frankly, I like that quite a bit. It's flattering. Most, if not all, of the results returned seem to be "fair use" and while I may not like every place it is being used or the modifications that someone might have made, I am absolutely fine with it being out there.

Almost every drawing, painting or photograph that I post online has a Creative Commons license applied. Because I usually provide a high resolution file, this means that if you want to download a picture of mine, you are free to print it out and hang it on your wall without asking for my permission or paying me one red cent. This is exactly how I want it to be.

In fact, if you have something of mine hanging on your wall, I'd love to see. Hit me up on Twitter (@tomgehrke) or on Google+ (+Tom Gehrke) and let me know!

I set the bar pretty low when it comes to using my work. Typically it involves dropping me a note and letting me know what you want to do. The result of this "policy" is that I have really had very little trouble when it comes to IP theft. It's kind of hard to steal what is pretty much given away.

In this particular instance, however, someone was profiting from my work and the work of many other artists. A publisher should know better. It's their job to know better. I dropped Amazon a note and in something under 48 hours, the book was no longer available for sale.

This did not make me feel particularly good since there was an author out there who had been excited about getting his book published and through no fault of his own, there I was trampling on his dream. Fortunately the author contacted me, we had a very reasonable exchange and we worked things out. He posted an article to his blog to let his readers and fellow authors know how things had ended up and linked to my original Ares piece on deviantART.

...To Worse

Unfortunately, I had long ago parted ways with deviantART and the posted link was to my Ares piece that someone else had posted as their own work.


Now deviantART is supposed to be a site for artists and I would have expected a fairly easy method for reporting abuses. There are, however, no links from a particular piece to a form or instructions for reporting a violation for someone who is not logged in to the site. My impression from reading their copyright policy is that some utility might be available for those with an account.
If you believe that a submission on deviantART infringes upon your copyright you may either report the submission using our internal reporting system or send us a copyright notice via email. 
[Emphasis mine.]
There was no way that I was going to create a new account just to file a complaint so I opted to go the email rout. I sent essentially the same thing that I sent to Amazon while also pointing out that the person had left my signature intact on the image in question. They were not claiming to be Tom Gehrke, while I, very obviously was.

The response I got back was that I needed to provide some very specific information and provide it in a fairly formulaic way.
To file a copyright infringement notification with deviantART, the copyright owner or an agent acting on his or her behalf will need to send a written communication that includes substantially the following:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. 
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. In this regard please provide URLs when you identify the location of the material.
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
What? I can drop an online retailer like a friendly note that will likely result in a product being removed, losing them revenue, and things are taken care of, but this site requires forms signed in triplicate? (Figuratively speaking.) If someone can explain to me why this should be the case, I would love to know. 

A little online research led me to believe that what deviantART was asking for amounts to the requirements for posting a DMCA take-down request. This seems to me to unnecessarily raise the bar for copyright holders. If deviantART (or any community-based site) has reasonable proof that the violation claim is valid, they should be able to simply take the offending work down. 

My signature was on the drawing in question. I was emailing from an account with the same name. I used to do volunteer work for deviantART in the past and the person responding to my violation email was hired at the same time I was brought on to help with the site's fledgling print program. My piece was one of the earlier prints available in the store. Several of the site's administrators had copies of Ares on their desktops or hanging on their walls.

Don't get me wrong, this wasn't a feeling of entitlement on my part. This was not a case of "don't you know who I am?" This was a case of being shocked by how difficult (relatively speaking) this process was from a  place that I thought would be the last on Earth that I would have a problem with.

So I danced the dance and used a DMCA take-down template I found online. If you are curious about what one of these things looks like, here you go:

This, thankfully, did the trick.

Why did I bother with the take-down notice for deviantART? Well, not realizing that this guy was actually selling prints (I can't tell if he actually sold any), the issue is that deviantART is a well known host for artwork of all kinds. Anyone trying to find the creator of "Ares" would likely assume that the "artist" on dA was the actual owner. Worst case, someone might get permission to use my work from someone who does not have the right to give it. Best case, it's confusing.

"Fine, Tom. Nice story and all, but why should I care?"

The fact is this. If you create something, you should be prepared to defend it. This does not mean that you have to take draconian measures. As I said earlier, I put my stuff out there and set the bar for use pretty low. I am not interested in watermarking my images or posting stamp sized copies. I have no plans to scour the Internet to find and vanquish infringers. If I come across someone who is unfairly profiting from my work, however, I will take some steps to try to set things right. 

As you can probably tell, the entire situation was frustrating for me. It was not that difficult (even though I thought it was more difficult than it needed to be in some cases). It was simply the fact that I had to take the time out of my day to do something that was not particularly enjoyable. 

It probably took more time to write this post than it did to do everything I've described above. If reading this helps you out in some way, then it was worth it. Even if all it does is make you think about where you might want to draw the line for protecting your own works, it was time well spent.

If you have questions or want to further educate me on this topic of intellectual property rights, please feel free to comment. I am always interested in hearing from you and learning all I can.

Cast of Characters

Luis Vera - Author and whistle-blower
Stephen H King - Author of the book whose publisher used "Ares" and fellow victim
Trestle Press - Publisher of questionable values and practices
deviantART - Art site