Tuesday, July 8, 2014

Illustration Plagiarism: Ways to Fight Back

So you found out you have been plagiarized. You ran an image check on one of your illustrations and found out it had been plagiarized and used without your authorization. Now you have to decide what you want to do about it. The first inclination is to go on the attack, but before you do, there are a number of things to consider that can help you determine if you should or can take action. To be clear, there is a difference between plagiarism and stealing. Stealing an image is bad enough, but plagiarism goes it one step further. And both are clearly wrong and are protected against by the US Government through Copyright legislation.
From top, left to right. Original illustration ©1992 Don Arday. Plagiarized 
illustration for book cover. Six derivative images ©2014 Don Arday.
Although plagiarists would argue that it is the sincerest form of flattery, plagiarism is not simply borrowing or appropriating an image, but it includes passing it off as one’s own original illustration. In other words, plagiarism is not only stealing an image, but stealing the skill, expertise and intellectual capital that accompanies an artistic creation. As a rule, corporations don't sanction plagiarism or go out of their way to plagiarize work, but individuals do, or an individual working at a corporation might do so without the corporation’s knowledge.

Research

Research will help you decide whether on not you want to take action. To do this, you should find out as much as you can about the perpetrator, extent of usage, and the circumstances behind the usage. Unfortunately, resolving a situation where plagiarism or stealing occurred takes a lot of time, effort, and in some cases it can be quite expensive. So there are a number of factors that will determine whether obtaining justice for an offence will be worth the effort, should be done, or can even be done. Here are two examples presenting difficulties that require further consideration.

Example One: Plagiarism
You found through an image search on Yandex.ru, which comes out of Russia that a source in China has taken one of your illustrations. The site with the image is in Mandarin and turns out to be a news site that obtained the image from an offline source with someone else being given credit for the work. Even though it seems rather straight forward, this situation would be take substantial time to unravel, and most likely any effort to track down the plagiarist would fail.

Example Two: Stealing
A fellow illustrator and colleague, Bob Dorsey, gave me the following example; and it is one that commonly happens to illustrators. Bob had produced an illustration for a Fortune 500 company specifically for in-house use by his client. Bob subsequently found out that an unknowing art director of the company’s ad agency had used the illustration for another purpose. Again it sounds straight forward, but perhaps not. A legal pursuit of additional compensation for usage, although perhaps justified, would have burned the bridge with the agency and their client resulting in the loss of future commissions.

Beneficial Courses of Action

Ok, so now that we know exactly what constitutes plagiarism and stealing, lets look at several courses of action an illustrator can take when either of these situations occur.

Send A Cease and Desist Letter

In cases where there is a non-commercial form of plagiarism, the first course of action and one of the best ways of dealing with plagiarism is to make the plagiarist aware of your rights and ask them to take your image out of circulation and cease and desist use of your illustration. If it was appropriated for online use, a cease and desist notification to the perpetrator and his/or her webhost or client usually does the trick. An effective cease and desist letter contains a “consequences” clause. In other words, what will happen if “no action” is taken by the plagiarist or thief, e.g., a lawsuit, inform their employer or client, etc.

Demand An Attribution or Retraction

If the illustration was wrongly published it may not be possible to recall it. However, notification can be served to rightfully attribute authorship of it or announce a retraction for the work, or to demand compensation for it.

Demand Compensation

Many illustrators will send an invoice to the offending party, or their client, for the plagiarized or stolen illustration. Although this doesn’t always yield any actual compensation (without further action), it is very good for letting a plagiarist and/or company know the actual value of the merchandize they stole. The plagiarist will think twice before appropriating your work again.

An Effective Combo
An effective action is to send an invoice in combination with a cease and desist letter. This is often taken more seriously than just one or the other. Again it depends on the circumstances and extent of the offence.

Hire A Lawyer 

Although time is money and it will take some time, all of the above actions can be taken without any capital outlay. If simple, low-impact tactics all fail, the next step would be to hire a lawyer to arbitrate the situation for you. Lawyers are extremely effective at this type of arbitration. In many cases they can achieve a positive result in a short period of time with minimal effort, and without having to file a lawsuit, which means their fees will be manageable—typically about $200 per hour.

File A Lawsuit

If arbitration fails then a decision whether or not to initiate a lawsuit will have to be made. This will take both time and money, and can be very expensive. Usually, these types of lawsuits are civil suits, and they take place in Civil Court, unless the plagiarist/thief violates criminal law. In civil suits, even if you win, lawyer’s fees are seldom grated along with any compensation to be awarded, so you will have to bare the costs of any legal fees. Thus, a decision to move forward with a lawsuit should be cost out and carefully considered.

Non-Beneficial Courses of Action

Publicly Expose The Plagiarist

With social media such as Facebook, Linkedin, Instagram, Chat Groups, etc., giving individuals exposure to large audiences, there is a great temptation to expose a plagiarist by name to the public. Although it seems that that there is nothing wrong with this, an eye for an eye, so to speak it is not a good idea. The laws that protect an individual or company’s standing in society are just as powerful as those that protect copyright ownership. And, denouncing a plagiarist from outside evidence could easily trigger a slander suit against the illustrator whose work was taken, especially if the illustrator is challenging an established company.

Sue Prematurely

I had a situation similar to Bob’s where a client that originally commissioned and paid for a set of illustrations that I produced republished them at a later date. The client didn’t realize that they had only purchased rights for publishing the images one time. Working first though the design agency that commissioned the work, and eventually the client directly, I did receive payment in full, but it took about 13 months. During this time I looked into taking the clients to court (There was the possibility that I would have had to sue the design firm and the client separately). The attorney’s fee and court costs would have far exceeded the amount I could charge for the additional usage of the illustrations. By being patient, and working at a low-impact resolution, I was able to receive the full benefit of the payment.

In The Too Much Information Category

The word plagiarism is derived from the Latin word “plagiarius” which means kidnapper, plunderer. The first common use originates in 1621 with reference to literary thievery. The common definition today is to steal and pass off the ideas or words of another as one's own, to use another's production without crediting the source.

Conclusion

It is important to have patience, keep a cool head, and be persistent when dealing with plagiarism or theft. It may take many months to reach reconciliation. Determine early on what form of recompense you wish to get, be it the removal of an image from a website, an apology, proper attribution, or payment for the use of your illustration. Consider your effort to receive justice as a process. Satisfactory results can be achieved by beginning with low-impact methods before engaging high-cost ones.