What to Do if Your Work Is Plagiarized

We consulted an intellectual property expert to know the procedure to follow should your creative work be illegally used

At a time when people, companies, and organizations need more and more content, designs, and ideas, the search for resources has become fierce. More so in the visual world, where unauthorized use, theft, and plagiarism of creative material are becoming widespread.

To be able to protect their work, illustrators, photographers, and designers must be aware of the legal tools available to enforce their rights against any such infringements. How do you protect your work? What do you do when you discover your idea has been used? We consulted Intellectual Property specialist lawyer Esteban Agatiello, founder of Creativa-Abogados’ (Creative - Lawyers’) studio, who has defended international cases.

What is art plagiarism? What is unauthorized use?

Plagiarism and unauthorized use are the most common ways in which intellectual property rights come into play.

- The legal definition of plagiarism is taking a person's original work and presenting it as if it was one's own.

- Unauthorized use, on the other hand, is unauthorized and unaccredited use of an artist’s original work.

Moral rights are violated in both cases, whether there is a lucrative intention or not. If they are profit-driven, then they also infringe proprietary rights.

Intellectual Property legislation stipulates that the damaged person must receive compensation for plagiarism and illegal use of their original work. Fines and even prison sentences are in place, and artists need to know them to defend their rights.

"International use is a characteristic of intellectual rights. Anyone can use an original work legally at an international level, but they can also do this illegally," lawyer Esteban Agatiello explains.

How does the law protect creatives?

Authors’ Rights is the law safeguarding all creatives. Regulated by the Berne Convention, it is undersigned by 178 countries. The convention guarantees authors from any signatory country instant protection of their original work and aligns standard criteria and rights. The treaty sets up the basic legal foundations, although each country later defines its implementation.

Thanks to this agreement, whether you live in South America, Europe, or the United States, Authors’ Rights is your general guide.

What must I do if a brand starts using my work?

Although art plagiarism has always been around, it may not have been so easy to be aware of illegal use as it is nowadays. In our hyper-connected world, in which millions of people can share information, it is normal for creatives, sooner or later, to realize whether their work is being used or copied by a brand.

The problem begins when you find out that a brand, small or large, or another artist shares the exact copy of one of your creations. This spans from copying an illustration idea to the design for a dress.

Steps to follow:

- Find who is responsible for the plagiarized or illegally used item. Try to see who’s behind it but do not get in touch with them or denounce the theft publicly. Limit this to collecting information.

- Investigate independently. Find out whether they have used your work within copyright limits: some work, such as murals created on public buildings, can be reproduced without permission.

- Seek advice. Ask for advice from fellow artists who have a lot of experience or turn to material issued by professional associations or unions.

- Collect evidence. The more you have, the easier it will be to know if the person who’s used your work generates profit from it. Evidence can be physical, such as leaflets or printed ads, but also screenshots from the web page of the offenders. All this evidence will be helpful if you need to provide a notarized document of the infringement. The more arguments you have to support your reporting, the more chances you’ll have to have your rights recognized.

- Find yourself a professional specialized in copyright law. Ask for prompt advice. If you’ve come this far, it means that you’ve concluded that paying for a professional to look into the matter closely is worthwhile. This expert will evaluate whether to demand the withdrawal of the stolen original work, ask for a compensation, publicize the case in the media, or start legal action. This is the point at which things could become more complex. "Unfortunately, if the exploitation of your work takes place in a country that is not your own, you’ll have to resort to a lawyer in that country to be able to start proceedings," Agatiello explains. It can get quite costly, as you can imagine.

- Consider the option to make the theft viral. This can make things happen faster, and the brand may suggest an agreement even before formalizing the matter. Often, you can get better results with this type of solution rather than go the legal way. Why is this not known? "There have been cases in which international brands have paid off creators through such arrangements, privately with confidentiality agreements that avoid public exposure of the occurrence or the amount agreed," Agatiello explains.

Difficult cases

As a creator, you must know that some cases can be incredibly complex. This is what Portuguese illustrator Lara Luís found out. "A follower alerted me about the fact that Chinese shopping platform Shein was plagiarizing my work. I have been copied before, but not on such a large scale. I immediately knew this was going to be a headache," the artist explained on her social media when what she defined as a "nightmare" began.

The illustration the company stole from Lara is a black cat accompanied by the phrase You work, I watch and judge, that she created in 2013. Lara started seeing her popular black kitten printed on many garments, which, in addition, were selling well worldwide.

As predicted, the matter was a real headache for Lara. In fact, it was worse than expected.

First, the illustrator had to face the company's indifference, which did not respond to any emails she sent them. Later, when she tried to approach the platform through influencers working directly with the same company, she verified that their queries had also been dismissed. Lara, therefore, began a campaign on her Instagram account to publicize the case. It worked, but only partially.

Although as days went by, she noticed that Shein had removed the items from circulation, she also discovered that the platform was only the tip of the iceberg of what was happening to her original work: Her design was available elsewhere, on legally unreachable platforms such as eBay, Etsy, or AliExpress. “It had been copied everywhere,” she reports, “basically in the whole of the Chinese and Vietnamese markets.”

Lara is not the only creator who is battling with these companies. Thousands of small creators and even more prominent brands, such as bootmakers Doctor Martens, are engaged in legal battles with these platforms. "Contracting a lawyer is almost impossible. Firstly, because there isn't a common thread to find those who stole the image, which is placed everywhere and sold by different companies,” Lara explains her social media. Furthermore, paying the necessary experts is not exactly cheap. "My agents had a problem with another illustrator in the United States and spent the equivalent of 50 thousand euros to begin proceedings there alone. I don’t have that kind of money, and there is no guarantee that the stuff doesn’t reappear at some point,” the artist complains.

Her only possible tactic has been to publicize the case in the local and international press so that fewer people would buy through those platforms. Along the way, she gained followers and sold her art to platforms that now request authentic material. She has met many creators in this process, who also experienced the same: jewelers, fashion designers, and artisans.

What can you do to protect your work?

Although there is always a risk when you come across "big fish" that are "interested" in your stuff, there are certain precautions you must take before showing your work. These precautions will ensure that you can rely on unquestionable legal backing should anything happen.

- Copyright your original work in the Intellectual Property offices of your city. The opportunity to officially certify that a piece is your own is available in any country. A vast register files a copy of your work, including day, time, city, and other details that prove officially that something existed already, should it be plagiarized. It is advisable, for example, if you have an unpublished work that you have never shown to anyone and you are going to show it to a publisher. If your work already appears in an Instagram account or is published through different media, this can also be considered a documented proof that the work exists. This fact relieves any artist who produces a lot of work (such as illustrators on Instagram) from registering everything before displaying it.

- Use online registering services such as SafeCreative. This registry is not considered an irrefutable proof but prevails in case of challenges.

- Always sign your images with the symbol©.

- Only share low resolution files. This makes commercial uses that require good quality more difficult.

- Always specify what can be done with your work in your contracts or invoices. You will therefore be clear about what cannot be done.

The field of Intellectual Property is extensive and fascinating and knowing about it is a must for all artists who wish to develop professionally. It is part of looking after your assets.

Have you found the advice in this article useful? Are you someone who’s had to deal with this type of practice for others? Leave us your comment in the section below.

English version by @acesarato

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