It’s not unusual for large internet companies to shield themselves from copyright infringement liability thanks to the Digital Millennium Copyright Act’s Safe Harbor provision, but TeeChip has finally proven that the act’s reach simply goes too far.
The internet flash-sale company, which sells t-shirts and other items, is no stranger to criticism for its shady business practices, but it does remain free from any liability for copyright infringement despite the company’s refusal to take action as pertains under the DMCA. Artists who frequently engage on social media should be wary of TeeChip’s dubious practices and have a clear understanding of the actions they should be taking to ensure that TeeChip is held accountable for its blatant copyright infringement practices.
TeeChip’s business model is quite unique, and its recent social media activity has prompted multiple, well-known artists to publicly denounce the company and its products. TeeChip essentially functions as a flash-sale pop-up website, where users can create and upload graphic products to sell on the TeeChip platform. TeeChip invites users to select their own design, reminding the user that the design should be ‘catchy’ and ‘interesting.’ Then, TeeChip asks the user to select from an array of products on which they can emblazon their designs – t-shirts, mugs, hoodies and phone cases are all fair game.
Once the product has been created, TeeChip encourages the user to promote the campaign on social media in order to make their sales. The products are printed, shipped and sold by TeeChip, and the user that created the product earns a profit on each sale.
While these practices are already dubious enough – there’s no guarantee that users won’t be uploading artwork without obtaining express permission from the original artist (more on that later) – TeeChip took it a step further. Artist Neil Gaiman made some pretty scathing accusations regarding TeeChip’s alleged practice of starting Facebook fan pages for artists, hiding the existence of the page from those artists using Facebook’s privacy settings, and then leading new followers to pop-up sales of products emblazoned with the unauthorized art of those artists. They’re essentially deceiving social media users into thinking that artists are selling these products when, in fact, a TeeChip user has merely stolen an artist’s work and is using a fake Facebook fan page to sell products.
It’s not unusual to hear of copyright infringement claims against websites of this caliber. We’ve discussed Etsy’s and Café Society’s own dubious practices here on Art Law Journal. But TeeChip’s blatant practice of impersonating artists online is unprecedented and frankly, disturbing. Here, we outline why TeeChip is getting away with it, and what artists can do to make sure they fight back.
Why DMCA Doesn’t Defend Artists Against Copyright Infringement
Copyright infringement runs rampant on the internet, and it’s easy to understand why. Many people don’t exactly understand what constitutes copyright infringement, but copyright protection exists in the instant a work is created: An original work, fixed in a tangible medium, with a minimal degree of creativity is afforded certain protections and rights. Even if the work isn’t registered with the Copyright Office (though we always advise you register your works), you can still assert your copyright protections over every creative work you take on – these protections include the right to distribute your work, profit off your work, display or make derivatives of your work. Only the author of a work – the owner of the copyright – can give express permission for the use of that work, and the use of the work without permission constitutes copyright infringement. Though it’s usually determined on a case-by-case basis, copyright infringers can be held liable for lost profits and fees.
The Copyright Act, which was first created in 1790, has clearly needed some reform over the years. Where it was once fairly simple to prove that someone had displayed or sold your work without your permission, the dawn of the internet age significantly altered the copyright landscape. In an era where copyright infringement is as easy as a re-blog or a re-tweet, scores of artists are finding themselves in situations in which their work is being used impermissibly.
On the other hand, internet providers were finding themselves at greater risk of being held liable for copyright infringement. Since deep-pocketed internet moguls often carry far more weight than your average unknown artist, a legal protection was created to shield internet service providers from copyright infringement liability. And while it’s true that these laws have allowed freedom of expression on the internet to progress, it’s also been take advantage of within the wrong hands.
The Digital Millennium Copyright Act, or the DMCA, criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. In addition, the DMCA designed to protect internet companies from incurring any liability if copyright infringement was found to have occurred on their website. The DMCA Safe Harbor exempts internet service providers from copyright infringement liability in an effort to strike the balance between the competing interests of copyright owners and digital users.
According to the DMCA, an internet service provider is defined as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of a material of the user’s choosing, without modification to the content of the material as sent or received. An internet service provider is shielded from the practices its users engage in, and not necessarily the actions it takes, so long as it remains a passive conduit from which users engage with the internet.
Providers seeking Safe Harbor protection must:
- not receive a financial benefit directly attributable to the infringing activity,
- not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent,
- upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.
In order to be shielded, a provider must adopt and implement a policy for addressing and terminating accounts of users who are found to be “repeat infringers.” The provider must also not accommodate or interfere with “standard technical measures” – defined as measures that copyright owners use to identify or protect copyrighted works. Known as the take-down notice, once an internet provider has been served with one, it is obliged to remove the content immediately. By definition under OCILLA, an internet service provider is shielded from the practices its users engage in, and not necessarily the actions it takes.
What the Safe Harbor provisions basically state, then, is that internet service providers who don’t wish to be held liable for copyright infringement – even when their users are purportedly engaging in the practice – must immediately respond to any claims that the practice is going on. For example, if a Facebook user sends Facebook a take-down notice alleging that another user has inadmissibly posted their artwork, then Facebook must take that image down – no questions asked – and give the offending user time to respond. The issue with take-down notices is that, often times, the offending user will counter the take-down notice with a claim that no wrongdoing has been committed. After a 14-day waiting period, that user can once again upload the same content – and the original user must initiate the take-down process all over again.
Can Artists Recover Damages for TeeChip’s Shady Practices?
TeeChip is hanging its hat on the DMCA, creating a business model that puts the onus of infringement on its users while shielding itself from liability. By choosing to allows users to upload their own drawings and create social media campaigns around those products, they are essentially eliminating their liability for copyright infringement. However, TeeChip may not even be able to claim DMCA Safe Harbor at all because they are not a ‘service provider’ as the term is defined under the DMCA. They are not a ‘passive conduit,’ as the law states, because they actively participate in making products. So they aren’t just hosting uploaded material, but rather working as an active provider of copyrighted material.
Unfortunately, the fact that TeeChip is wrongfully using artists’ copyrighted material doesn’t necessarily guarantee artists stand to pocket legal fees if they move forward with a lawsuit. Let’s assume that an artist has decided to issue a take-down notice to TeeChip, once they’ve spotted infringing material. If the take-down notice goes unanswered, then TeeChip is not adhering to DMCA standards and is therefore not shielded from copyright infringement liability. Instead, they are leaving themselves open to a copyright infringement claim and damages.
Now, let’s assume that the artist has decided to move forward with a copyright infringement lawsuit based on TeeChip’s refusal to take down the infringing material. Unfortunately, the damages sought in this case would be relatively small, since TeeChip produces mugs and t-shirts, which are fairly inexpensive and wouldn’t amount to significant lost profits. The benefit of a lawsuit likely wouldn’t outweigh the hassle, and few attorneys (and artists) would be willing to go through the work of filing and pursuing this lawsuit. To that end, the fact that TeeChip is violating the DMCA means very little, since the artist wouldn’t be able to recover very much from TeeChip.
On the other hand, artists who have taken certain measures to protect their work would have the opportunity to make their case against TeeChip worthwhile. If the artwork being used by TeeChip was registered with the U.S. Copyright Office prior to the infringement, then the artist would automatically stand to recover statutory damages. Statutory damages are outlined in U.S. Copyright Law as an automatic consequence to copyright infringement, so long as the work has been previously registered with the Copyright Office. According to Section 504, these damages can amount to anywhere between $750 to $30,000 per infringement, and up to $150,000 if the artist can prove that TeeChip intentionally copied their work (read our detailed breakdown of how statutory damages are calculated). Often times, a court will determine that an infringer intentionally copied an artist’s work when the infringer has been issued a take-down notice and has failed to comply.
In addition, most courts almost always award legal fees to the plaintiff in copyright infringement cases involving statutory damages. While it’s up to the judge, most will award legal fees in situations in which the artist registered the work with the U.S. Copyright Office at least three months prior to the infringement. So, if an artist had registered their work in December, and discovered TeeChip copied their work in March, then it’s more than likely that they would be awarded statutory damages plus legal fees.
In that case, it would be much easier to find an attorney who would take a copyright infringement case on contingency, which essentially means that an attorney would file and pursue the lawsuit on the artist’s behalf in exchange for a portion of the damages awarded. In other words, the artist wouldn’t be responsible for paying the attorney up front but rather would pay him a percentage of whatever the artist recovers – in most cases, about one-third of the total settlement – in addition to being paid the court-appointed attorney’s fees. If the artist loses the cases, then the attorney does not get paid for the work; but, the odds of winning a statutory claim for copyright infringement damages are extremely good when the work has been registered prior to the actual infringement.
While artists who have registered their works with the Copyright Office certainly have a roadmap for recovering damages from TeeChip, the likelihood of the suit being cut and dried isn’t very probable. TeeChip would likely avoid going to court at all costs because doing so would mean that their dubious practices would most likely be ruled outside of the DMCA’s safe harbor protection. Since that would most certainly shut down their business for good, TeeChip will do everything in its power to make sure the case settles out of court. Settlements are confidential, so the artist would likely recover a sizable sum, but the settlement would remain hidden from public knowledge and would allow TeeChip to continue to infringe upon other artists’ copyrighted works.
What Can Artists Do to Avoid TeeChip’s Trap?
While it seems rather difficult to take TeeChip down, there are certain measures you can take to make sure your copyright protections are held intact. For starters, install a tool that helps discover infringing material, like src-img. This free tool uses Google’s image search as its platform. Google’s image search technology doesn’t rely on file names or metadata hidden in the photo but actually looks for similar images based on the physical image itself. So, if an artist’s work was on a pillow, and the infringing user took a picture of that pillow for their TeeChip store, the image would still be located via the search.
Next, don’t overlook the importance of registering your artwork with the Copyright Office. While it sounds like a major production that requires the help of a lawyer, the reality is that it’s fairly simple to do and ensures protection of your hard work. We’ve provided a detailed, step-by-step guide to registering your works, and are happy to answer any questions you might have.
So, if you find yourself the victim of TeeChip’s dubious copyright infringement practices, and your work has been registered with the Copyright Office, it definitely pays to contact an attorney. Under the DMCA, TeeChip would be held liable for copyright infringement, and you’d likely stand to recover a nice sum.