Stolen artwork? Here’s how to protect your work

Reprinted with permission from Indian Country Today. 

Sarah Agaton Howes was moved to tears describing the theft of her original artwork.

“After all that’s been stolen from us — our kids, language, land, religion, our whole way of life — then this guy thinks he can just walk in and take our artwork,” Howes said, her words catching in her throat.

Howes, a citizen of the Fond du Lac Band of Lake Superior Chippewa, was alerted to the theft by a friend who sent her a copy of a design for sale on another artist’s website.

“Isn’t this your design?” the friend asked.

Howes couldn’t believe her eyes. Her original Ojibwe floral design had been reproduced in a number of prints for sale online and had even been included on the artist’s Facebook profile.

“He didn’t even bother to draw his own version,” Howes said. “He just copied and pasted mine directly onto one of his prints listed for sale on his website.”

Howes soon discovered that the artist, who was from the Netherlands, operated several websites and ran various accounts on social media promoting and selling drawings, paintings and jewelry ostensibly produced by him.

The artwork appropriated by the man included the name of Howes’ well-known Ojibwe lifestyle brand, “Heart Berry,”which is part of a partnership with Eighth Generation, a project building business capacity among Native artists while addressing the economic impact of cultural appropriation. Howes routinely collaborates with and raises funding for Native organizations and groups such as the Minnesota Indian Women’s Sexual Assault Coalition, the Indian Child Welfare Law Center and others.

“We create everything from wool blankets to clothing and apparel; we also do logos, murals and teach a lot of cultural art, working with the community on revitalizing Ojibwe arts, specifically moccasins and beadwork,” Howes said.

Since the man lives outside the United States, however, Howes was unclear if U.S. copyright law would apply or if the U.S. Indian Arts and Crafts Law would protect her work.

“How do I stop him?” Howes wondered.

It’s a complicated legal question that can leave artists and other creatives wondering how to protect their work from international appropriation.

In the end, however, for Howes, it took a combination of knowledge, friends, social media and determination — and a bill for $50,000 — to reclaim her artistic property.

Sending notice

Artists don’t need to register their artwork in order to have copyright protection.

Original artwork is protected by copyright, and there are a number of ways to address misuse or theft of original artwork, according to Elizabeth Schilken, an attorney specializing in trademark and copyright law.

In addition to sending a “cease-and-desist” letter — a notification sent to the wrongdoer describing the misconduct and demanding it stop — artists can also send a “take down” notice under the Digital Millennium Copyright Act.

“This law allows you to send a notice to an online service provider or an internet service provider; they must then remove the content,” Schilken said.

Most large companies have registered agents that they’ve designated to receive take down notices, and the agent is listed in a U.S. Copyright Office database. It’s easier than filing a lawsuit, Schilken said.

“When an artist finds that someone overseas is infringing on their copyright, trying to chase down that person through a lawsuit is extremely difficult and costly,” she said. “It’s far better and cheaper to send that person a take-down notice right off the bat.”

Unfortunately, however, the U.S. law only applies to services hosted in the U.S. But it doesn’t hurt to try, since a take-down notice can also apply even in some other countries, according to Schilken.

“Many other countries also have similar take-down procedures as in the U.S.; these notices are typically designed to be without the help of an attorney,” she said. “Sending a take-down notice, however, wouldn’t necessarily stop the offender from going to another website or continuing to sell the infringing goods elsewhere, but sending a notice is a good first step.”

Suing someone for copyright infringement, however, requires that the material be registered with the U.S. Copyright Office.

‘Make your own’

Howes began the fight for her work by sending the Dutch artist an email informing him that the artwork was her design and instructing him to remove it from his site.

“This floral design is a direct copy of my art. Please remove it and make your own,” she wrote.

“Initially he was rather dismissive,” she told ICT. “He responded, “Wow, I am impressed; you have been busy. Those little floral designs tucked into the corner of my drawings are yours? Ok, I will take care of it and erase them from the drawings. Thanks for pointing them out for me.’”

Howes and her supporters, however, noticed that not all of her designs had been removed from the artist’s internet presence.

“So, I took it up a notch and began posting information about the situation on social media,” Howes said. “I knew someone would know him.”

Friends and colleagues responded, sending the artist more emails and posting messages on Facebook calling attention to his use of Howes’ designs.

Christine Woods, a Duluth-area advocate for artists and a citizen of the Boise Forte Band of Chippewa, posted a comment on the artist’s Facebook page informing him that his use of Howes’ designs was an example of copyright infringement and may be in violation of the Indian Arts and Crafts Act.

Passed in 1990, the act requires that artwork sold as authentic Native works must be produced by an enrolled member of a federally recognized or state-recognized tribe, or by someone who has been designated an authentic Native artist by a tribe.

The artist presented himself as Ojibwe, claiming to be from Bawating, the Sault Ste. Marie Tribe of Chippewa Indians. When Woods questioned his enrollment status, however, he directed her to a statement within one of his websites that has since been taken down.

“Is my artwork authentic Native American Art? No, it isn’t officially,” according to the statement. “Please note I am not enrolled in any tribe which means that, according to present U.S. law, I do not have a Native American status. The jewelry and works of art that you find on this website can therefore not be classified as authentic Native American. Each and every creation that comes out of my hands although inspired by Ojibwe Anishinaabe culture is uniquely mine and could only be made by me.”

The artist grew defensive when she inquired about his tribal enrollment status, according to Wood, and blocked her from commenting on his Facebook page. “The issue is that you really have to dig into his website to find the statement about enrollment,” Woods said.

Protection under the Indian Arts and Crafts Act is more complicated, said Trevor Reed, Hopi, a law professor at Arizona State University who is an expert in Native American intellectual property rights.

Native leaders are encouraging Congress to strengthen the Indian Arts and Crafts Act, proposing legislation that would increase and expand protections as well as enforce stricter punishments for those who are selling or making counterfeit goods. Counterfeit items are often recreated by non-Native artists or printed off and reproduced on portraits, shirts, mugs, online shops and many other places throughout the world.

Can foreign citizens operating outside of the U.S. be sued under this law? So far, such a scenario hasn’t been tested in U.S. courts.

“It’s pretty complex,” Reed said. “Even if someone in the Netherlands can’t be sued for violating the Indian Arts and Crafts Act, they might be liable for copyright infringement if they violate a tribal member’s creative work.”

Reed also noted that many social media companies such as Meta, Facebook and Instagram require new users to agree that they can be sued in U.S. courts and are subject to U.S. law, if they violated the social media companies’ copyrights and rules.

“That jurisdictional permission, however, doesn’t always extend to lawsuits brought by the average user or members of the public,” Reed said.

The final blow, however, for Howes was an invoice she sent for $50,000 to the artist for using her work. At that point, he not only removed her art but also took down at least two of his websites where he sells his own works and apologized for using her designs in an email to her.