Plagiarism, Copyright Infringement and Passing Off
If you run a creative business as a graphic designer, website designer, photographer or illustrator your work will almost certainly be viewable over the web on your own website or in an online gallery. And unless you have marred it with a watermark of some sort it is vulnerable to being copied by anyone for them to pass off as their own work.
Imitation is the sincerest form of flattery but it is upsetting to see people and businesses who claim to be part of the creative industries passing off other people’s work as their own. Passing off or misrepresenting someone elses work as your own is against the law in most countries with the potential for a plaintiff to claim for loss of earnings, goodwill or reputation. As a creative business that relies on its website for a significant part of its new business our greatest fear is that Google may penalise our website for having duplicate content and that we will lose our top of page one rank in their listings. Google has been very suspicious of duplicated content for a long time because it was used in black hat SEO and by spammers. Last year Google’s Penguin update went even further to penalise sites that it deemed were peddling pirated material.
So how do you find out if someone is passing off your work as theirs? We pay $4.95 a month for Copyscape’s Copysentry to do a weekly check on the text on our site. There are several free sites like www.plagiarismchecker.com that will scour the web to find copies of text. For images TinEye at www.tineye.com was one of the original reverse image search engines. It adds tens of millions of images to its database every month, it’s free and all you need to do is drag and drop an image onto its home page. If you use Chrome or Firefox you can install the Google Image Search add-on that will perform a reverse image search by right-clicking an image.
Sometimes we come across blatant copying of our website’s IP. A company in Northern Turkey not only copied all the code from our website for themselves but they also left our meta tags in place complete with references to Logo Design Limited based in South Devon! There was also another company, this time in Egypt, that had copied our code and who also kept testimonials from our clients with the names of members of our staff.
Recently I came across a company in Vancouver that had two websites with page after page of logos in their portfolio “ dozens of them “ most of which had been designed by us. They also had large tracts of texts that had been copied word-for-word from our briefing questionnaire and elsewhere on our website.
Every logo in this screen shot was designed by Logo Design Limited – but it’s not our site!
I sent them an email pointing this out and asking them to remove our work from their website with utmost speed. Their excuse was that this was uploaded by mistake as demo filler content and they promised to remove the offending material which they – eventually – did. That company no longer appears on the web “ and good riddance to them.
The above image shows our Start Ups page for small business packages…
…and this is a screen shot from a business in New Zealand which is nothing to do with us.
Creativity is a gift, it’s something to be proud of and to cherish and for many of us it enables us to earn a living. If the perpetrator works in one of the creative industries then they are shooting us all in the foot. To pass off someone else’s creative work as your own is not only underhand, in common law it’s theft because it potentially deprives someone of their just reward and possibly their livelihood.
What are your legal rights?
Of course originality is vital, definitions of original include preceding all others and the point at which something comes into existence not derived from something else fresh and unusual and the beginning of something. The law is pretty clear concerning originality, copyright and ownership. Wikipedia defines copyright as a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time. Generally, it is “the right to copy”, but also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it The copyright symbol © was required along with the word copyright and the name of its owner under US law until 1989 but today it carries no legal authority and serves merely as a useful universally recognised symbol that indicates that someone claims ownership to something. So if you have created something original it is your intellectual property and these days it is pretty easy to prove when you first created it or when you first published it.
The first international treaty concerning copyright was the Bern Convention of 1886 and this was updated 110 years later to take account of advances in information technology in the World Intellectual Property Organisation Copyright Treaty or WCT. In the USA this comes under the Digital Millennium Copyright Act or DMCA.
Stopping the thieves
So what can you do if you find that someone is passing off your creative work as their own or, worse still, using your work for their own benefit without paying for it? Assuming the offending material is on the web the first thing you should do is to take a screen grab of it. On a PC Alt + Print Screen copies your screen to the clipboard, on a Mac cmd shift 4 allows you to drag across the area you want copied to your desktop. Sometimes you can get a rough idea of how long the offending material has been used by searching the Wayback Machine at Web Archive:
The Internet Archive’s Wayback Machine records websites “ this page shows how many times it has crawled our own website.
The next thing to do is contact them and politely point out what they are doing wrong and ask them to remove the offending material. Many people honestly do not realise that they are doing wrong and are genuinely sorry and appalled to find out that they are breaking the law by copying an image off the web and using it on their own site. If there is a usage fee to pay you should explain your charging system and give them the opportunity to remove the image from their site legally to cease and desist “ or to pay up. We give people seven days to remove any copies of our work after which, we tell them, we will start legal proceedings without further notice. In my experience the worst offenders are usually those who are rude, abusive and often attempt to deflect their guilt by claiming that we are persecuting them.
Issuing a DCMA Notice
If the offending material is displayed on a website you can contact their ISP to request that they take down the site citing the terms of the WCT or DMCA. You can find the registrar or owner of a URL by making a Whois query, try www.whoisdomaintools.com You will need to provide a DCMA Notice to the ISP which must include proof of ownership along with a sworn statement signed with a digital signature.
Naming and shaming
Alternatively you can name and shame the guilty party on your own website, blog or social network. David Airey exposed a designer who had passed off as his own work some of David’s logo designs including original concept sketches. David runs the very popular Logodesignlove blog and his followers took up the cause with such passion that David had to kill off the thread and the so called designer has quite probably changed his name and found alternative employment as a banker.
Blogs such as You Thought We Wouldn’t Notice highlight countless examples of creatives posting what they believe are knock-offs of their work, adapted for garments, posters, etc. And Digital Arts has some interesting case histories on their site. There are also interesting stories about people who have named and shamed some well known brands and then been handsomely “ if belatedly – rewarded for their original efforts.
New copyright law
The government intends to update and clarify the laws concerning copyright and many people are concerned that they will loose out. The law will – and in my opinion should – allow people to copy things for their own personal use, for study and for review, for research, education and archiving. But that’s all.