I've found some more infingements like this. One with the same image, also cropped, on a facebook site as profile image. All of them use the art to promote esoteric products or services. The weirdest one is a lady named Lilith who sells the spirit of a dragon bound to a cheap piece of jewellery for $78. I think I'll try to bill all of them, but I'm not sure how much to charge- is there a standard fee for licensing existing art for web use?
How can I document a copyright infringement to prove it if necessary? I mean... they can just remove the infringing copy and pretend it never happened. Is a screenshot or saving the page to my hard drive enough? Those things are easy to fabricate.
Well if you go with the case of the photographer who got his work stolen by AFP and ended up with a payout of millions, there's not really a limit as such as to what you can expect. Just a practical limit in terms of what you think they might or might not pay. These are small time infringers (as opposed to someone like Sony Entertainment or Agence France Presse) - so you're unlikely to get any money out of them to be fair. Personally I wouldn't bother billing them, just issue a cease and desist order. These guys are obviously cheapskates otherwise they would have made the effort to buy it off you in the first place. As for the lady selling dragon souls or whatsits - f*cking hell man... if she's happy to scam people like that - she's happy to not pay you a penny. Much easier to just go straight into a cease and desist than to go - oh hey you can use it but only if you pay me x - then she can go - oh well I don't think x is reasonable - or I'll pay you soon - wait wait - oh nothing happens - another invoice - pay me now - wait wait - oh nothing - oh NOW cease and desist. During which time several months and hassle have elapsed and meanwhile she's being using your image all she likes.
If you really DO want to bill her - there's things to take into account with licensing - is it a one off use - is she going to be replicating the image (i.e. printing it on a T-shirt) - is it just being used to sell a product - how much of the value of the sale derives from your illustration? These things might or might not be taken into account. If you go down a county court judge route - this is probably how he or she will think about it - and he/she may just come up with an arbitrary number regardless of what you think or don't think is reasonable. You could go the angle of the cost you would have charged had you been commissioned to do this piece exclusively - (provided this wasn't already paid work for someone else) - that would be easy - just tot up the number of hours etc... but it also means they'd have full rights as a client would expect, for said work. That's most likely to be the upper scale of things in your case.
I'm sure that photographer hired a proper copyright lawyer and the case went to a judge who knew about copyright law - which resulted in the massive payout, but this is small potatoes...
As for certifying that she'd used your art work - well I can think of lots of ways to go about it. As you said, screenshot, photo, signed 3rd party witness. If it goes to a county court you'll just be convincing a judge (think of judge judy) - so you gotta think of what seems reasonable. It's pretty unlikely that you'd take someone to court when they hadn't stolen your copyright so just because it was taken off and they go 'I didn't do it your honor' probably wouldn't save them because the infringement still occured But just so as you don't take any risks - write everything down. Write down the date that you first noticed the infringement. Write down all the particulars of what it was being used to sell. Write down when you first informed them of the infringement. Write down if they take it down or not... If they take it down in a timely manner its difficult for you to pursue it because they could just say 'we didn't know, but when we were informed we acted with all reasonable haste to restore copyright' - so it's important you keep track of everything that happens. If it takes them several weeks or months from when you inform them to when they actually act to remove the image (or pay you) - that makes a difference.
I hope that's helpful... I've been on the arse end of a couple of law battles for much higher stakes but the general idea is the same nonetheless... get your story straight - get your facts straight - keep an accurate account... that's the main thing.
Oh and if you want to watch me paint live I recently got introduced to this thing called picarto TV... It's nice to do art and share it - if you have any questions it's great to talk too! I'm painting pretty much 12 hours a day so you'll most likely find me - unless I'm eating
I see... Then it's different in Germany. Here the infringer gets a "Abmahnung" from the copyright holder's attorney which means he has to pay a high compensation for damages - a fictional license fee, this can be a few thousand Euros for one photo-, the copyright holder's attorney AND he has to sign a cease and desist declaration. The infinger can - with the help of an attorney- negotiate a lower fee, but if he can't prove he's innocent, he has to pay something. You can even get a Abmahnung when the infringement is strictly noncommercial (then it's "only" 150€ for the attorney plus damages), or if you are allowed to publish the image but forget to give credit to the artist.
If I understand this correctly I can either send them a cease and desist notice- which costs them nothing - or a bill, which (when paid) grants them future usage rights? No bill for damages they've aleady done without giving them any usage rights? That doesn't seem right, there isn't any actual financial risk for the infringer?! Flying to the US for court or hiring a US lawyer is too expensive for me and probably not worth it in these cases. So it's more difficult to get justice and money for small potatoes like us than it should be in theory. Btw, those esoteric potatoes can be quite big indeed- just think of the profit margins!
I found a nice site for documenting: freezepage.org. It saves a copy of a website which can't be manipulated by the user so this might be useful too.
Thanks again for sharing your experience! It's good to know what to expect.
@benedikt Yeah yeah yeah, welcome to my ignore list, enjoy the stale doughnuts while you crap on artist's rights and the dead silence piped in from I don't give a fuck.
The weirdest one is a lady named Lilith who sells the spirit of a dragon bound to a cheap piece of jewellery for $78. I think I'll try to bill all of them, but I'm not sure how much to charge- is there a standard fee for licensing existing art for web use?
The thing with billing is it has to be a BIG company with an accounts payable department...and I have no idea how big that shitty catholic site was but it seemed to have some income behind it. so my guess is some dorky goth named lilith who sells shitty charms isn't going to pay you.
I'd do what Lovingit suggested and send a cease and desist, make it sound official, send it on a letterhead if at all possible. There are ways to find out where someone hosts. If it's hosted by a big site like Ebay or Wordpress, all the better - these companies, once they find out about shenanigans, are VERY responsive and the penalties will often include complete shut down of their operations.
So we got two stolen images on shitty sites taken down in this thread? Progress is sweet! but considering the payouts, why arn't we ALL just trying to get our work stolen so we can sue for millions?
Nice painting by the way! Also Dragons don't really like being confined to cheap plastic charms or even being associated with them...vain creatures you know....and deadly. So give a real dragon a heads up and maybe they'll take care of it for you....if "Lilith" ends up with a really irate dragon on her ass she'll think twice before stealing art XD
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