Design company (probably) using my art illegally

November 11, 2021 10:12 AM

I've begun offering some of my paintings as digital downloads. The other day a web design company bought one. I'm concerned that the'll use it commercially (I've stated that's forbidden). I don't know if there's anything I can do now. More broadly, are there changes I can make to help curb this?

I was hoping to generate some passive income by adding digital downloads to my Etsy shop. These are high res images in different aspect ratios that the buyer can have printed in whatever size. In the file it states that these are only to be used personally and not for business.

I finally sold one the other day and was sad to see that the business account of a web design company had bought it. It's totally possible that an employee wanted it for personal use. However, it seems far more likely that they'll be using this commercially. I sent them a note thanking them for their purchase and politely reminding them.

I have the company name and was able to find their website. I don't think there's a way I'll know if they're using it or not, aside from routinely doing reverse image searches, which may or may not even bring it up. I don't know enough about web design companies to know if my image could end up in a bank or something like that. I'm most concerned about that, or them sharing/selling it to others. Given that they must know it's illegal and do it anyway, I don't know if contacting them directly would help or just seem crazy. I can't report to Etsy since I don't know they've done/ will do anything wrong. Plus they already have the images, which they download automatically.

More broadly, I like the option of digital downloads but am now realizing this could be a common problem. Given how much intellectual property is misused, I'm not naive enough to think I can prevent this. But I wonder if someone has found a solution to keep the convenience while making it harder to abuse.

posted by mermaidcafe to Work & Money (13 answers total)

In the file it states that these are only to be used personally and not for business.

I'm confused as to whether they see that restriction before or after they purchase the digital download. If the restriction is just in the file after they download it, I think they have a reasonable argument that they never agreed to your restriction.

But I wonder if someone has found a solution to keep the convenience while making it harder to abuse.

I would consider using a service that is oriented towards selling files (which are licensed) rather than things (like Etsy, and things are generally not licensed). Although this is not a recommendation, I have seen Gumroad used for this purpose. When selling digital files, it is essential licensing and usage restrictions be included as part of the purchase process (rather than after the purchase process), which Etsy is not particularly oriented towards.
posted by saeculorum at 10:29 AM on November 11, 2021 [1 favorite]

When I've purchased art digitally (for commercial) use, I first had to fill out a form indicating what I'd be using it for. Perhaps you can bring this into play somehow. Not sure if Etsy will do that for you though.
posted by hydra77 at 10:32 AM on November 11, 2021

Response by poster: When I've purchased art digitally (for commercial) use, I first had to fill out a form indicating what I'd be using it for. Perhaps you can bring this into play somehow. Not sure if Etsy will do that for you though.

This is an idea. I'm editing the listings to require personalization. In the box where I prompt for personalization, I'm saying that by typing " I agree' they're agreeing not to use commercially. At least they'll have to pay enough attention to type their agreement into the box.
posted by mermaidcafe at 10:42 AM on November 11, 2021 [3 favorites]

Definitely make sure your ToS is watertight and linked everywhere. There's some brief guidance here. The bit about mentioning NFTs and blockchains is, sadly, increasingly important these days. It might not stop someone stealing your work but it will enable you to prove that they've broken your ToS if they do so.

I agree that Gumroad would be better for this than Etsy. As well as not really being set up to protect artists irt digital downloads, Etsy's customer service isn't great for artists who have issues with buyers.

Honestly I would assume that if it was a business account/email rather than a personal one, they may be likely to use it commercially (and it wouldn't be the first time). I don't think there's anything wrong with sending them a polite email to make sure they understand that they can't use it.
posted by fight or flight at 12:05 PM on November 11, 2021

Offer them their money back if they weren't aware of the restriction.

However -- if they are in the US and I hope other countries -- as professional web developer(s), they should know already how copyright works and that they cannot reproduce your image AT ALL -- or any image not presented as royalty-free or too old to be under automatic copyright -- unless they get specific, written, contractual permission from you. Otherwise they are breaking US law.
posted by amtho at 1:12 PM on November 11, 2021 [1 favorite]

Response by poster: They still have the files, so a refund wouldn’t do anything. And I agree. This should be basic for their industry
posted by mermaidcafe at 2:27 PM on November 11, 2021

Realistically, no, there is nothing you can do to prevent misuse of your artwork. Even if you could prevent the file being copied, so long as they can view it, they can take a screenshot, which might prevent it being good enough to be printed from but not from being reproduced on the web.
Even the big media companies can't stop their IP being copied and redistributed online, all they can do is get their lawyer on it. You're not a big media company with your own legal department though, you're a small Etsy seller. You can run TinEye searches and send takedown notices to ISPs/hosting companies if you find your rights have been infringed - that should be sufficient for most reputable hosting companies but what if they're not with a reputable hosting company and/or they're in another country - what could you do then? You can make them sign whatever you like but if you're not prepared or able to legally enforce it, then it really has no weight. The distribution of digital media is basically on the honor system, you've made them aware of the terms but its still on you to enforce it sadly.

Unless they planned to print it for their office, its very likely they plan to either use the artwork commercially. All you can really do is keep checking reverse image searches and waiting to see if it shows up.
posted by missmagenta at 2:51 PM on November 11, 2021 [1 favorite]

A refund would make clear that you are serious, and you are watching what they do with your art, and that this isn't casual to you.
posted by amtho at 5:20 PM on November 11, 2021 [1 favorite]

I'm confused as to whether they see that restriction before or after they purchase the digital download. If the restriction is just in the file after they download it, I think they have a reasonable argument that they never agreed to your restriction.

It doesn't matter legally. Permission to use copywritten material is something that is granted, not assumed, so whether or not they agree has no bearing on their rights for reuse. This is part of why a quality design firm will stick to licensing content from an established stock art source where there's clear terms of use from the get-go (or create their own in-house). Even then, you'll pay a different price depending on what types of reuse you intend to use it for.

At most, they'd have grounds to request a refund if that wasn't clear. However, unless it's a registered copyright, going after them legally is unlikely to be worth it (other than filing DMCA takedowns) from a financial perspective.
posted by Candleman at 5:32 PM on November 11, 2021 [2 favorites]

You are jeopardizing your own Etsy store. Your buyer would have a good complaint to Etsy already that you are mistreating them, given they bought the image consistent with Etsy’s TOS and you suspect them, on no evidence, or intending to violate your purported supplemental terms of sale (which might themselves violate ETSY’s TOS) and are communicating with them. Chasing them further is a really bad idea.
posted by MattD at 6:38 PM on November 11, 2021 [4 favorites]

Response by poster: My “purported supplemental terms of sale?” A thank you note that mentions an already-stated copyright policy based on an IP law that web designers already know?

I don’t see why it would violate Etsy’s terms to do that: If you find it in the handbook, let me know for the future.
posted by mermaidcafe at 11:00 AM on November 12, 2021

Not a lawyer, but I have had to do research on similar matters on the past.

The role of Etsy is a bit of a red herring. Whether someone buys the rights to print your painting on Etsy or via your personal website (or wherever) is a moot point. As Candleman said above, "Permission to use copy-written material is something that is granted, not assumed".

I wouldn't burn too many calories on this particular instance. If they do end up using the image, you can send a cease and desist letter or engage a lawyer, but each option carries risks (scroll down to the "How can I stop people from stealing my artwork on the internet?" section).

I side with the folks above about looking for an alternative to Etsy for better protection of your IP.
posted by jeremias at 4:53 PM on November 12, 2021 [1 favorite]

Keep in mind that depending on what the web design company is, it might be just some person's freelance gig with a nice looking website because, well, they're a web designer. They may be just an individual that likes your art.
posted by [insert clever name here] at 8:31 AM on November 28, 2021