Why I Think Using Social Media To Call Out Infringers May Be A Good Idea After All

There’s a question I get asked so often in my practice* that I’ve started giving PowerPoint presentations on the issue: “How do I protect my work online?”  

Nobody likes my response, "Don’t put anything online. Ever.” 

I get it, it's a ridiculous answer. But it’s the only foolproof way to ensure that your work stays unstolen, uninfringed, and unmolested. After all, if people can’t access your work, they can’t steal or appropriate it, right? But it's just not a practical solution in this day and age. So for those who want the boring but practical response, here it is:

Know how to fight back when you're infringed. 

And you will be infringed; it’s almost a statistical certainty, so you might as well know how to deal with it. There are many strategies you could employ to do that, but since none of you are paying me, I’m not giving them all away here. There’s one in particular though that I think is worth discussing here: using social media to rally public opinion around your issue to leverage your bargaining power. The internet can be a really amazing tool for change in that way.

Back in December, I opined about a famous example of this: Brandon Stanton’s Facebook shaming of DKNY when they used his work in their stores without his permission. Stanton, founder of the popular blog Humans of New York, was able to leverage his huge following into getting DKNY to stop. 

At the time I said, "I’ve always admired the usage of social media to rally support and sway public opinion, but mostly as an outsider. I've never advised any of my clients to do it and I think it would be a colossal mistake in all but the most deserving situations." 

My reasoning was that while social media can help broaden awareness, if you use hostile or accusatory language, you could find yourself at the butt end of a defamation suit. That would be a fine how-do-you-do, wouldn’t it? To be the victim of copyright infringement but instead find yourself being sued for libel? 

I wrote that seven months ago. And while I still agree that you need to be careful about your wording - if for no other reason than to take the high road - my stance has now changed. I’m not entirely sure why. Maybe it was watching how effective the protests that followed Ferguson and Baltimore were. Maybe it’s the fact that I finally - FINALLY - saw Selma and feel inspired not just by the bravura filmmaking on display, but also by Dr. King’s message that self-sacrifice, properly publicized, can be a forceful instrument for positive social change. Or maybe it’s the fact that a close friend of mine is now dealing with this exact issue. 

My friend is a working illustrator and last week he pointed me towards Wallpart.com, an online poster shop where you can search for images, and for a price, purchase printed copies to hang on your wall. He found dozens of his images on the site (retailing for roughly $6.00 apiece) without his permission. Annoyed, he emailed them asking them to remove his work, which they claimed they did. But less than 24 hours later, his work was still on their site. It’s still there today, over a week later.

Even with the generous discount I would have given him, he can't afford to sue them. Nor does he have the time, between working on the projects he currently has and hustling to generate new leads. His work is full time, emotionally and logistically. What he needs is the quickest and least obtrusive way to get Wallpart to stop, and suing them wasn't going to fulfill those needs. So he did what any reasonable person would: he called them out on Facebook and Twitter. He also passed around a link to a change.org petition to have the site removed [Author’s Note: my friend did not start the petition; it already existed and as of this writing has over 47,000 signatures requesting to have Wallpart taken down]. He also asked me to help spread the word, since unlike Stanton, he doesn’t have 250,000 Facebook followers.

According to Wallpart's terms of service:

WallPart Respect the copyright of others. This means we don't steal photos or images that other people have shared and pass them off as your own. We have no base of images, and doesn't host and store the image on servers. Wallpart.com only helps the user to find the images interesting him, the site uses data of the most known third-party search engines, Process of search happens at user's browser. The user himself makes search queries, all content displayed in a window of the browser is received from third-party search engines. The displayed images are loaded from third-party servers, and aren't host on the site hosting. When the user make the order, we get the image from the user, he is responsibility for use. Wallpart.com doesn't bear responsibility for the images received from users.

Now, aside from the mangled English, it’s clear Wallpart doesn’t respect the copyright of others. A quick Google-search will turn up thousands of stories of artists who claim their work was used by Wallpart without their consent. And even if Wallpart doesn’t, as it claims, store any of the images on its own servers, that doesn’t matter. It can be found liable for secondary or contributory copyright infringement for knowingly inducing or materially contributing to copyright infringement. That’s why all those Peer-2-Peer networks like Aimster, Limewire, and KaZaa, got in trouble and the courts and RIAA came down on them with such might. They weren’t storing copyrighted material on their own servers, they were knowingly facilitating the illegal transfer of copyrighted work between parties, regardless of the legal uses of the software. Of course, “knowledge” of the infringement is key here, but I doubt it would be hard to drum up evidence that Wallpart has knowledge of its infringing acts.

But here’s the thing, and there’s really no escaping it... to get Wallpart on a copyright infringement claim - which I think is highly winnable - you have to sue them. And most artists don’t have the time or money. Which is why in a case like this, social media is a really good option for forcing change. My friend isn’t likely to get a settlement from Wallpart and neither are the the thousands of artists who have allegedly been ripped off by them. But with enough noise, they can get the site taken down, and that’s a pretty good outcome.

* It occurs to me that I start a lot of blog posts this way. I should add it to my growing list of writerly affectations that I'm determined to nix.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA