I'm being flogged publicly ..is my accuser handling it legally
November 13, 2011 7:09 AM   Subscribe

I did the wrong thing...but do I have any rights in this situation?

I am an artist who blogs nearly every day. I paint from life; from photos and I sometimes copy other's paintings (to learn how to do it). I usually have been very clear on my blog about which paintings are copies. I KNOW that I should never try to "fob-off" a painting that I copied as my own. It is a douchey thing to do, but in a weak moment, that is what happened and I very much regret it. (Please, in your reply to me..could you try not to beat me up too much about copyright infringement?) I am aware that people are passionate about the subject and again, I know what I did was wrong.

Recently another blogger (“W”) discovered that one of my paintings was not attributed as an homage/copy painting and that it had been displayed. (“W” is not the artist I copied). “W” aggressively "outed" me on her blog. She put up a photo of the original painting (that was done by artist "X") and my painting that is a copy. W (as you can imagine) was extremely harsh and she wrote a long vicious indictment of me (that was somewhat true and also untrue). Most of the specifics she supplied in her blog post about an email exchange with me was inaccurate. At the end of her post is a photo of my face lifted from my blog. She links to everyone involved and she emailed a gallery that shows my work. I am aware that I have done a wrong thing. I have contacted "X" to apologize to him and to accept responsibility for my actions. (He has not yet contacted me).

Many people have written to me and the accusation is making the rounds. One person I spoke with about this counseled me to not address the situation on my blog and to carry on as usual (until I hear from X) and that is what I am doing. I don’t have money for a lawyer.

My question to you is this..W grabbed all the photos for her expose' from my blog and X’s website. Legally, does she have rights to grab my photos and X's photo to use it in her blog? If I wanted eventually to “answer” all this publicly would I be within MY rights to “lift” her portrait and paintings off of her blog to post on my blog? I have done a wrong thing....but has she (who isn’t even the actual “injured party”) the only one with rights? Do I have any rights in this situation? Do you have any advice (aside from statements about how wrong I was/am)? Thank you for any ideas or helpful suggestions.
posted by anonymous to Law & Government (22 answers total) 1 user marked this as a favorite
"Answering" her posts may or may not be your right, but any response other than a contrite apology, removing the copied images from your blogs, and donating any proceeds from sells of copied images will escalate this into an Internet Drama and you have the risk of this turning into something that permanently comes up for your name on the Internet. Google "Todd Goldman" and see how many of the top results mention his store vs. plagiarism. You do not want to escalate this, especially if you want to have any sort of online presence in the future.
posted by Benjy at 7:18 AM on November 13, 2011 [6 favorites]

I think you need to separate out the things that are problematic here

- what you did and your communication with X - you're working on that
- what you did and your communication with your blog readers about that - I'm unclear if you've made a public statement either before or after the outing by W
- what W did and your response to that - what you're asking about

I feel that if you have a vindictive response to W about lifting photos from your blog and whatever, you're probably not going about this the right way. W may be being mean and a bitch but ultimately, I think, the main assertion is correct even if they were hyperbolic and mean about this, right? So, going after them for using images without your permission--which is technically something you could try to do, but it's more likely to start an ongoing thing with W than it is to make you feel better, and while it might make your images on their website go away this sort of thing has a tendency to ooze out (i.e. someone would find images from some other place)--is more likely to put more attention on them [especially if they continue to make a thing out of your responses] and not likely to either let the issue wind down, or help you feel any better.

So, everyone's got to choose the path that works for them, obviously, but I'd try to take whatever is left of the high road. Don't engage with W who seems to have it in for you. Come clean on your blog, with your readers, no matter whether you've heard from X or not [I couldn't tell if X is a famous artist or just a random painter] so that you've "made it right" with your audience. Don't be all bean counting "they said this but what really happened was THIS" but a flat assertion of what happened, what went wrong, what you did, how you've tried to make it right. Ignore W entirely. I'd really get out of the "rights" issues here because it's not going to help your case and if you really want to get nitpicky, what you did was a much better deal than copying someone's images on to a blog and I think most people will see it that way. Asserting rights will just come back on you and not solve the problem.

So, specifically, legally, depending on a whole host of things, you might be able to hassle W into taking down your images, it will definitely not be the path of least engagement or best handling this situation and you'd have to talk to a lawyer which you've said you don't have money for.
posted by jessamyn at 7:21 AM on November 13, 2011 [10 favorites]

If I wanted eventually to “answer” all this publicly would I be within MY rights to “lift” her portrait and paintings off of her blog to post on my blog?

First of all, if you are a working and selling artist, then you need to consider this situation professionally and not personally. So, no, you don't want to counter her accusatory blog post by lobbing shit right back at her. This is about your work and your choices, not artist W. Heck it's hardly even about artist X.

It's a little unclear: Did you sell paintings that were duplicates of artist X? Or were you just posting them to your blog as sort of your daily practice? I think it's pretty common for artists to make deliberate copies to hone your skills and perspective, so the difference is pretty crucial. You may want to contact a mod to let us know, because advice will vary between the two.
posted by Think_Long at 7:22 AM on November 13, 2011

It sounds to me that it was merely an oversight about not marking one of the copied compositions. Surely just saying this on your blog would suffice:

"Sorry all, as you can see here, here and here, I normally mark these paintings as being based on those by other artists. I forgot to mark this one, and I apologise for anyone I've misled."

I'd also then bite my tongue and privately email W saying something like:

"Hi, thanks for bringing this to my attention. I've added the proper attribution to the painting. As you know, many artists will recreate works we admire in order to improve our skills and pay homage to our influencers, and you were right to call me out on not attributing it properly. As you can see here, here and here, I normally do, and this was just an oversight. Considering this, I feel that your blog post is unduly affecting my professional life. Could you please either remove it or update it to reflect your further findings? Thank you, Ann Onymous."
posted by Magnakai at 7:46 AM on November 13, 2011 [35 favorites]

Dos W have the right?- If you pursue W on this, it will look like you are trying to cover something up. I think the "fess up" advice is good.

I think that whatever you do, you shouldn't start an argument with The Internet. That never ends well.
posted by carter at 7:47 AM on November 13, 2011 [1 favorite]

If you were doing these paintings for yourself as a training exercise, and you weren't making any money off of them, than as long as you are clear about this, I don't see what the problem. Just like a band doing a cover of someone elses song, as long as it is clear who came up with the artistic concept, and as long as you aren't making any money off of it, this shouldn't be a problem.

If you were selling them, that changes things, as the original artist clearly has some claim to the money that was made, although I don't know if there is a standard way this is done in the art world (or if it is done at all). In the music world, there is a specific agency you contact and pay, and they pass along that money to the owner of the rights to the song.
posted by markblasco at 7:47 AM on November 13, 2011

If you actively misrepresented a copy of another person's work as your own, you should worry more about your reputation, rather than exacting revenge against someone who pointed out your failings. Come clean, apologize, and promise never to do it again.
posted by lobstah at 7:54 AM on November 13, 2011 [6 favorites]

Surely this isn't the big deal W is making it out to be, if you are doing this for practice? Artists do it all the time. Edit the page to include attribution / link to the original, maybe a footnote saying it was edited with a link to the W accusation page, and move on. I wouldn't even apologize, it is not a big deal unless you turn it into one through additional drama.

Really, you don't want to argue about it, you want this in your rear view mirror as soon as possible. Getting a dozen more works / blog posts onto your site, bumping this off the front page, is your best course of action.
posted by Meatbomb at 8:03 AM on November 13, 2011 [1 favorite]

And in the future I wouldn't post images of pieces that you've done as studies which are copies of other people's work. Homages which reference someone else's work are one thing but don't post copies - you'll save yourself a lot of grief.
posted by leslies at 8:16 AM on November 13, 2011

(I am a lawyer, I am not your lawyer, this is not legal advice)

Just going to the question of if "W" had the right to lift the photos from your website, and leaving everything else aside, I would guess yes.

The right that you would be asserting is most likely your copyright in your painting. And, even though you admit it's a derivative work, you do a have a copyright in it. However, as a long time reader of metafilter I'm certain you've heard of the Fair Use Doctrine. If not, it's a set of rights that we all have to use copyrighted materials in certain situations for certain purposes.

One of the purposes that the Fair Use Doctrine protects is the right to criticize a work, because often, to criticize a work, you have to be able to use part (or all) of the work in that criticism. You're supposed to take as little of the work as necessary to show your criticism, but in the case of a copied painting, that would likely be the whole painting.

You might be able to argue that the resolution of the photo was greater than needed to show the criticism, if W is presenting such a high quality copy that someone could get the photo instead of getting a photo painting from you. But, frankly, that's weak.

So, my best guess is that W had every right to take the photo, and by the same argument, the photo of the original painting, in order to display the copying.

Again, I am not your lawyer, and if this was an actual case, I think I would rather be W's.
posted by bswinburn at 8:22 AM on November 13, 2011 [3 favorites]

I agree with Jessamyn's approach--put it all on the table on your own blog and give yourself the luxury of the space and word count to express yourself fully. You can give your mea culpas and explanations and let your readers understand the backstory, which is important here.

I think you should also contact W before you make the post and let her know that you want to make this right. Let her know you have a post planned, and ask her if she'll help you reach anyone that may have been misled by your painting. If she's any sort of decent person (and she may well be), she'll either remove the original post or will help spread the word that you're not as big of a dirtbag as she told the Internet you were.
posted by yellowcandy at 9:20 AM on November 13, 2011

Legally, does she have rights to grab my photos and X's photo to use it in her blog? If I wanted eventually to “answer” all this publicly would I be within MY rights to “lift” her portrait and paintings off of her blog to post on my blog? I have done a wrong thing....but has she (who isn’t even the actual “injured party”) the only one with rights? Do I have any rights in this situation? Do you have any advice (aside from statements about how wrong I was/am)?

If I were you, I'd spend a week blogging explaining yourself and what went on here.

Explain everything.

And yeah...what she did was harsh, but not illegal. The only thing you can do right now is to deal with the fallout so you don't lose your career.
posted by hal_c_on at 9:39 AM on November 13, 2011

It sounds to me that it was merely an oversight about not marking one of the copied compositions. Surely just saying this on your blog would suffice:

I don't think so. The OP even admitted that they purposefully did this in a "weak" moment.

DO NOT LIE on the blog. Your credibility is already up on trial. Don't give the fork and torch crowd more ammunition.

Be honest, and explain yourself. Oh, and dont get baited into a back and forth with the artist who "outed" you. In fact, if you are 100% honest, and the honesty doesn't coincide 100% with what she is saying, maybe you'll be able to out her as "does not paint an accurate picture of drama-filled events".
posted by hal_c_on at 9:42 AM on November 13, 2011 [1 favorite]

Her use of your photos might be protected under Fair Use, but who cares? I think you've made a relatively harmless mistake, and that you've apologized to the original artist who doesn't seem to care. Go and sin no more.

Ignore BloggerWithaGrudge. Least said, soonest mended. Don't explain, don't complain, find something else to blog about.

(And gee, I hope you're not Bob Dylan.)
posted by Ideefixe at 10:46 AM on November 13, 2011 [1 favorite]

Please, in your reply to me..could you try not to beat me up too much about copyright infringement?

I'm not even going to get into any of that at all. I just want to tell you something about your reaction here.

I have never seen a response to being "deservedly" flogged publicly that ended the flogging, EXCEPT FOR taking the high road.

If you are being flogged by a lot of people then MOST of them just want to see you acknowledge that you were wrong, take 100% responsibility for you what you did, apologize, and make amends. Without getting defensive, casting blame, making excuses, whining, pointing fingers, etc.

If you do so --simply and humbly take 100% responsibility for you what you did, apologize, and make amends -- then anyone who continues to aggressively flog you after that will just look spiteful and axe-grindy.

I think what you said here is just right to post on your blog: I KNOW that I should never try to "fob-off" a painting that I copied as my own. It is a douchey thing to do, but in a weak moment, that is what happened and I very much regret it. If I were you I would also add that I reached out to the artist, apologized to him, and accepted responsibility for my actions.

If I were you, after posting that, I would just leave the whole thing be, ignore it, and let it die down.

If you do something vindictive, spiteful and petty like going after this woman for reposting your photos, or you post her photos, and you attempt to equate her posting your photos to what you did, the only thing it will do is make you look really bad.

This is my advice for ending your public flogging; if you are seriously worried about being sued for copyright infringement, you need professional advice.
posted by cairdeas at 12:02 PM on November 13, 2011 [5 favorites]

Just... stop where this line of thinking is even going. High road - take it.

"In a weak moment" you did something bad, and the only thing you can do at this point to not compound it is to own up, apologise, and make amends. In fact, I would not directly engage with "W." at all. You're right - she's not the injured party, but because you are not innocent of wrong doing most attempts on your part to get back at "W" will likely have the effect of compounding and confirming that your reputation is about to go mud.
posted by sm1tten at 12:43 PM on November 13, 2011

Before trying to hide information that is unflattering to you, remember the Streisand effect. If you really want this to blow over, I wouldn't even ask W to remove the blog posting. She doesn't really sound like she would be sympathetic.
posted by grouse at 3:46 PM on November 13, 2011 [2 favorites]

Mod note: From the OP:
Thanks to all who answered!
I am doing as Ideefixe suggested (finding something else to blog about and "going and sinning no more")
I sincerely appreciate everyone's help.
posted by jessamyn (staff) at 4:36 PM on November 13, 2011

I find it interesting that you're taking advice that minimizes what you've done, and that you've also asked for responses that minimize what you've done.

Having watched a lot of internet drama play out, anything short of a contrite public apology will lead to this being remembered and dragged out any time someone disagrees with you. See also, for example, this plagiarism charge against a published author back in her fandom days, which is often still brought up in the same breath as the author's name. If I were you, I'd write a thorough admission of wrong-doing, disallow comments, and consider the matter closed. And sheesh, don't do it again-if, for no other reason, that you're going to be thoroughly watched for this kind of behavior in the future.
posted by PhoBWanKenobi at 6:34 PM on November 13, 2011 [2 favorites]

There's this terrible habit on the internet of people not owning up to what they did and/or giving half-assed apologies about it. The problem with doing this online is that it is permanent, cached or screenshotted somewhere in the archives.

Websites exist and have the right to exist to call out these very things, so your argument against W being able to take your images and put them on her own site is moot. If she wasn't hosting the image that would be one thing, but most people aren't that stupid anymore.

If you want to salvage your name/brand, you need to bring this up. A search engine ignores the fact that you ignored the fact, and might even end up putting W's post above your own official pages depending on her traffic/relevancy to the user/how many people already saw it. If you are using your legal name or regular handle, you need to address it before a curator or future employer does.

Plagiarism on the net is a huge deal. Honesty and transparency are a huge deal. If you were truly out to copy this work and not attribute the original artist to it, shame on you, but you could still get away with just pretending you forgot to add the original as per Magnakai's suggestion.

Whether or not people believe it is up to them, but on the internet every second you don't respond makes you look more guilty, especially if you've continued posting or being active elsewhere where W can see.

Post your apology on your blog, link somewhere to W's post, and then apologize on W's blog post and link to your apology. Respond to posts on your blog (even the ones you don't want to). After a few weeks of responding to questions, close the comments down and at the end of your blog post, add your email and invite people to voice any continuing concerns.
posted by june made him a gemini at 9:06 PM on November 13, 2011 [1 favorite]

Agreed with PhoB and June; people who are or will be important to you professionally are going to want to know whether you understand what you did and how bad it looked, because the evidence and W's explication of it will continue to be available no matter what you say. Future employers won't assume you learned your lesson if they can't tell whether you even know that there is a lesson. If you don't apologize in a real way and make it clear that you understand that what you did was "douchey," people who look you up are going to suspect your original work.

In the future, probably better leave the skill-building exercises out of the blog.
posted by Adventurer at 11:16 PM on November 13, 2011

Or you could change your name by one letter. (well played, Ms. Claire/Clare, well played)
posted by screamingnotlaughing at 11:15 AM on November 14, 2011

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