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Copyright Infringers Target Wildlife Artists

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Painter Al Agnew is not an inveterate shopper, but he spends a fair amount of time looking through merchandise catalogues. So do a lot of other wildlife artists; these days, it's part of the job description that tends not to get mentioned very much. Agnew and his wife, Jane, who live in St. Genevieve, Missouri, receive catalogues from 25 or 30 companies and look through them for images of fish, wolves and other wildlife on a variety of products (watches, coasters, t-shirts, for instance) that look like his own artwork. Too often, they find something.

The artist sells original oil paintings, specializing in pictures of fish, wolves and other wildlife, as well as prints based on those paintings, but somewhat more than half of Agnew's income is generated from licensing images to dozens of companies for use on their products. Other companies, however, choose to just take the images without paying a licensing fee to the artist. "Lots of things have been pilfered over the years," Agnew said. "On the average, there are half a dozen a year that we find." The loss of revenue to the artist for those six stolen images would be "$150,000 a year, had we not found it." (The artist has no idea how much money is lost for unlicensed images they do not find.) But, at least, they find that many, keeping his Washington, D.C.-based lawyer, James Silverberg, busy tracking down the copyright infringers and arranging payments.

"Most cases are resolved without going to court," said Silverberg, who represents a number of wildlife artists, "and those that get as far as the courtroom are usually resolved through summary judgements" -- a presentation of the facts of the case. "Almost all the litigation is over how much will be paid to the artist, rather than over the issues of the case. No one is denying that the artist's copyright has been infringed."

Copyright infringement is a large and growing problem in both the fine and performing arts -- growing, because of the globalization of manufacturing (factories in China, for instance, where copyright enforcement is lax at best, get hold of popular art designs and reproduce them on clothing and other items, which are then distributed around the world) and because of the ever-more powerful digital technology that can scan art imagery (itself a violation of the copyright law), create changes in it (a violation of an artist's "moral rights") and print out copies in high resolution. Wildlife art appears to be in particular demand, according to Linda Schaner, president of the Venice, Florida-based Mill Pond Press, which publishes print editions in this genre, because it is "widely appreciable in the sense of the imagery. Middle America understands and enjoys nature and wildlife."

Mill Pond regularly files copyright infringement lawsuits against companies and individuals who have made use of images published by the company. Thefts had become so brazen that, some years ago, the publisher began stamping the word "Sample" on images sent out to prospective buyers in their brochures in order to stop people from cutting them out, matting and framing them to sell as actual prints. Even more over-the-top, according to Randy Eggenberger, president of the Minneapolis-based wildlife art publisher Wild Wings, are people who have done the same with Wild Wings catalogues and then "tried to sell the product to us."
The greatest unauthorized use of copyrighted wildlife art imagery is on commercial products, such as the apparel, home furnishings and paper product industries. According to John Haesler, a co-owner of MHS Licensing in Minneapolis, which negotiates licensing agreements between artists and manufacturers, "we send high-resolution images to manufacturers in the United States, who send the images to their overseas factories, usually in China, where most of the actual production takes place. Once the images are overseas, we lose control of them: People there may sell the images to other factories, who create another line of products with them." In less developed countries, he noted, "the arm of the law doesn't reach these factories, or the authorities don't care" about copyright law. Even when local authorities are willing to cooperate with western law enforcement efforts, factories producing the illegal items may shut down but quickly reopen somewhere else. Fortunately, the major market for these products is the United States, and artists (and their lawyers) are able to bring legal action against the distributors and retailers. Artists and their agents may never find out about products that bear their images sold in other countries.

Many of these products are displayed at trade shows, as well as in gift and supply catalogues that are targeted to the outdoorsmen. Walking through various showrooms at the Atlanta Gift Show in 2002, Haesler noticed a wildlife image on a decorative plate by Minnesota wildlife artist Jim Hautman -- "it was an image we had licenced to another company." Haesler "clandestinely took a photograph of the plate, and I later got information on the company that produced it," which he turned over to the artist, who brought legal action to stop its sale and distribution. Al Agnew claimed that his wife's family ("it's a big family") is on the lookout for his images on products in stores. Osprey, Florida painter John Seerey Lester and his wife walked into a boutique in the city of Naples (Florida) that featured a line of clothes with his images all over them: "There was a beautiful outfit -- a chiffon dress with a top, costing just short of $1,000 -- with an image, my image, of a tiger," he noted, adding that the same tiger was reproduced on slacks, socks and separates in the store. "I had to buy one of the dresses, as proof that the infringement took place." Then he called his lawyer.

Haesler noted that, in pursuing a case of copyright infringement, it is relatively uncomplicated to "follow the trail of a high-resolution image we sent out, through the manufacturer to the factories to the infringer." However, when someone downloads an image from his company's Web site to use on a product, finding the original source of the infringement is less certain.

Wildlife artists are regularly on the lookout for infringements, but so are their licensing agents and lawyers. Wild Wings has staff that is focused on what Eggenberger called "image and copyright management." Most legal actions are resolved quickly and often contain a confidentiality agreement, barring public disclosure of the settlement terms. Hiding the evidence of these infractions may make it more difficult for artists and their agents to know which companies have acted illegally in the past but, for the particular artist who has filed a lawsuit, agreeing to confidentiality usually concludes the case more quickly, "and the artist usually receives more money," Silverberg said.

There tends to be little desire for a drawn-out court battle on either side, and many cases end on a positive note, with the infringing company agreeing to pay damages and signing a licensing agreement to use the image legitimately on its products. "We turn infringement cases into licensing agreements a third of the time," said Eggenberger. "We first do a settlement on the infringement, and make sure that what they pay is significantly in excess of what they would have paid if they had done it properly the first time, and then we enter into a licensing agreement. Turning an infringer without making them a penalty encourages them to do it again." He added that companies that have violated an artist's copyright are often quite willing to sign a licensing agreement: "The infringer may have no choice: He probably has a warehouse full of items that he'd otherwise have to destroy."

The more prominent the artist, the more likely that he or she will be the victim of copyright infringement. Canadian painter Robert Bateman, one of the most successful artists in the field of wildlife art, stated that "I am the biggest target," and his Toronto lawyer, Michael Levine, agreed, claiming that he is "constantly writing 'cease and desist' or stronger letters to companies using Robert's images." Wildlife artists often walk a thin line between fine and commercial art. In this field, the sharpest viewers are rarely art critics but experts in, say, ornithology or marine biology, who look at depictions to make sure that everything is "right." Still, these artists view their creations as fine art, even though a large percentage of their income is derived from commercial applications of their imagery: Can they simultaneously maintain the esteem of both an art audience and a more general public? How much exposure is too much? Would putting their artwork on a dog food bag harm their reputations and careers? What nettled Bateman most about an unauthorized edition of prints of his work was that the artwork was sold at Sears: "That's the part I detest," he said. "I'm kind of an art snob; I prefer to see my work in the carriage trade." Finding his images available at Sears implied "down-scaling my work, which I find demeaning. It makes me too ubiquitous."

There are three ways in which Robert Bateman's artwork is stolen. The images of his paintings and prints are downloaded from one of the many Web sites (his own, his publisher's, his galleries') showing Bateman's work, or scanned into computers from calendars or actual prints, then enlarged and reproduced as new print editions. Reproductions of the artist's paintings in one of his six books are also cut out, matted, framed and marketed as "Robert Bateman miniatures." Actual oil on canvas paintings, based in part or in whole on his paintings but produced by others, have also found their way to sales venues, adding more confusion to the market for Bateman's work. "It was at one of my book signings that a well-dressed, intelligent-looking man came up to me and announced that he owned three of my paintings," Bateman recalled. "I said, 'Oh, which ones?' I keep pretty good track of where my major works are, and I was surprised to hear that three of them were in this little town. The man then told me, 'You didn't paint them. They were painted by an artist in the Phillippines.'" This buyer had purchased his three "Bateman" paintings, matted and framed, for $40 apiece, and though they were signed by the Filipino artist there was no doubt in either Bateman's or the buyer's mind that they had been copied from Bateman's own work. "They were pretty good copies," Bateman said. "I'd give him a seven out of ten." Since the Filipino artist had signed his own name, there was no issue of forgery involved -- "but, still, it was done without my permission, and that's illegal."

Because of the expense of trying to locate and prosecute this artist thousands or miles away, Bateman "didn't go after the guy." However, he did pursue an Italian manufacturer of clothing accessories, which had used his images on neck ties and scarves. The company asserted that its designers independently developed the same images based on photographs found in National Geographic magazine, but settled with the artist when no National Geographic images could be found to back up their claim. ("Most of the settlement went to the lawyers," Bateman noted.)

Bateman might consider himself lucky. Wildlife artists often find themselves at a disadvantage when accusing other artists of copying their work. To begin with, realistic images of most flora, fauna and wildlife tend to look rather alike. "All white-tailed deer look similar," Eggenberger said. "You can only do them so many ways." He added that a carp only twists one way when coming out of the water: "There is a finite way of depicting certain things." James Silverberg has argued in legal briefs that deer antlers "are like fingerprints -- every one is different. They grow in different ways, they don't all have the same number of points, and they don't grow at the same rate." However, bringing in a wildlife expert to make such subtle distinctions would be an expensive use of court and lawyer time, and Silverberg is more apt to threaten a trial than actually proceed with one. The infringing artists (or their lawyers) are likely to claim that all wolves are pretty much alike and, to the casual observer, the differences are not immediately apparent. However, Silverberg noted, there are many variations that artists may highlight in any given type of animal -- proportion, body structures, body positioning, shape of the shadows, how light hits the animal and, for those with fur, how the fur separates when the animal moves.

As a basic rule, a deer (for example) cannot be copyrighted, but a rendering of it can be. More and more wildlife art images are produced every year and, as a result, Eggenberger said, wildlife artists "are more challenged than ever to bring to market something that hasn't been done before." To protect themselves from accusations of copying, Eggenberger advises artists to keep their reference work, such as sketches and photographs, in file folders.

Not only do wildlife artists try to create new and original work, manufacturers that produce any number of items on which an image may be included -- clothing, upholstery, wallpaper, mouse pads, screen savers, truck mud flaps, table mats, note cards, towels, bath mats, rugs, ceramic tiles, coffee mugs, curtains, feedbags, posters, decorative plates, calendars and sundry other merchandise -- need an ever-changing number of images that may be used: These products usually have a life-span of only a few years at most. The companies may enter an agreement to license existing images, or they can simply pick up a design illegally, making unauthorized use of it until they are caught. In some instances, manufacturers work with staff or freelance artists who are required to submit a certain number of designs to be used on products. Under a deadline, these artists may appropriate copyrighted material for some of their submissions, perhaps making some changes in the design in order to ward off an accusation of infringement. "Some people think that if they change an artwork 10 percent, 20 percent, then they're OK," said Silverberg. "It's based on a misunderstanding of what copyright is about and what they can and can't do." (If the derivative work still looks substantially like the original artwork, a claim of copyright infringement can be brought, regardless of the percentage of changes made.)

Being in the right doesn't always encourage artists to bring a legal action against copyright infringement. "I have to think, how much do I want to sue someone, especially since I hate the whole legal stuff that goes with it," said Joe Hautman, a wildlife artist in Plymouth, Minnesota who once saw his winning federal Duck Stamp image used (without attribution or payment) on the barrel of a limited edition working shotgun sold by the Richmond, Virginia-based American Historical Foundation. With the help of a lawyer, Hautman wrote the company a "cease and desist" letter, but "they still didn't stop using my image," the artist said. "They said they'd send me a gun as payment, but they didn't do that, either." Three years later, American Historical Foundation tried the same thing with an image by the artist's brother, Jim, who was also a federal Duck Stamp winner, but Jim brought a lawsuit that resulted in a substantial settlement. "It showed me that, as much as I want to spend my time painting and not suing people, you really have to go after these people," Joe Hautman said. "If they aren't doing it to you, they'll do it to someone else."

The federal copyright law is a use-it-or-lose-it statute. Copyright holders are required to prevent unauthorized use of copyrighted material, and to bring action against those who infringe upon it. If an artist chooses not to bother pursuing someone or some company that illegally made use of an image, it would weaken their legal standing in the event that someone else -- for instance, a major corporation -- made unauthorized use of that art. In legal parlance, the artist would be guilty of "passive acceptance" of the first infringement, potentially allowing the art to enter the public domain.