By Alex Bullock
When Kanye West announced the development of his seventh studio album in March of 2015 (what would eventually become The Life of Pablo, released earlier this year) Nick Stokes and Eric Swanson, two Portland-based artists and Kanye fans, were inspired to make something to commemorate the occasion. The result was What ‘Ye Is It?, a custom-animated calendar that features a looping animation for each day of the week, inspired by West’s collection of works. After its creation, various media outlets linked to Stokes’ and Swanson’s website (for a list of the coverage, see here).
Fast forward to June 8 of this year: Finish Line, the athletic shoe and apparel retailer, posted the animation to their Instagram account in honor of West’s 39th birthday. However, the post credited music and lifestyle magazine The FADER for the work. The FADER posted about Stokes’ and Swanson’s work on May 14, 2015, but it is not the author of the work. Even after being notified by the authors of their mistaken attribution and their unauthorized use of the work, Finish Line has not made any effort to resolve the issue.
Stokes and Swanson, by virtue of being the authors of the work, own the copyright to the work and enjoy the exclusive rights that come along with copyright ownership under the Copyright Act of 1976. Among these rights are the right to reproduce and distribute copies of the work, and to prepare derivative works. The exclusive rights granted through copyright law incentivize the creation and dissemination of original works. Possible remedies for infringement include injunctive relief and damages for lost profits as a result of the infringement.
So what can a copyright owner do when they find that their work is being used on Instagram (or somewhere else on the internet) without their permission or without proper attribution?
One option is to try to get the allegedly infringing content removed under the Digital Millennium Copyright Act. Instagram provides an online form for copyright owners to facilitate the application of the DMCA. A copyright owner can report an allegedly infringing use of their copyrighted work and compel the online service provider to take down the infringing content (here, the OSP avoids secondary liability for hosting the infringing content).
Moreover, under the Visual Artists Rights Act of 1990 (formally a part of the Copyright Act), 17 USC 106A(a)(1)(A), an author of a “work of visual art” (a term which has a fairly narrow statutory definition) has the right to claim authorship of their work. This provision is one of the few examples of moral rights in American intellectual property law. Any and all remedies for infringement of a copyright are also available for infringement of § 106A rights.
Often times for an independent artist, however, the costs of litigation (both economic and otherwise) relative to the possible remedies, make filing suit a less viable option – especially when the party on the other side is a large corporation with considerable resources, as is the case with the situation outlined above.
Likely, the most effective option is to contact the infringing party directly with the hope that they will resolve the issue on their own, either by taking down the content or at least giving proper credit. After all, they might not realize that they are infringing in the first place. It is an unfortunate situation, however, when a party who has clearly violated the author’s exclusive rights makes no effort to remedy the situation.
The internet has provided incredible value to artists by increasing their visibility. Instagram is just one of many tools that make it easy for an artist to disseminate their work. Of course, Instagram is free to download and to browse, and an artist who posts their work there does so with the knowledge that they cannot make money from users viewing their work. The real value for an artist is for their work to gain popularity and to be viewed by more and more people with the hope that they create a following such that the artist is able to build a considerable reputation and brand recognition. An artist can then parlay that into some other commercial benefit, if they so choose (like having someone specifically commission a work). For this reason, proper attribution is incredibly important for artists so that they might actually gain recognition for their work when users experience it online (especially when they view it through a third party).
With the increased ease of access to works comes an increased ability for the rights of the authors of those works to be infringed, possibly without the knowledge of the author at all. Without someone notifying them or seeing Finish Line’s post themselves, Stokes and Swanson would have had no idea that their work was being used without their authorization. It’s easy to imagine a situation where the infringing party is not a large corporate entity, but another artist trying to pass off another’s work as their own. In such a case, Stokes and Swanson might never know that someone is passing off their work as their own (and possibly benefiting commercially from it).
Image source: COLORTIME.
Editor’s note: Since the drafting of this article, Finish Line has removed the post from their Instagram account.