The battle between artists and fraudsters in today’s digital age

DOUBLE EXPOSURE | Shane O’Brien, one of the owners of Gallery Jones, with James Nizam’s Drill Holes Through Studio Wall and an American Eagle Outfitters T-shirt bearing a very similar image

The Internet has made B.C. artwork susceptible to theft by corporate interests. But in a copyright fight against Goliath, David can still win, say legal experts

In January 2012, artist James Nizam set up a wall in his Vancouver studio and started drilling constellations of holes within a circle. He made larger ones in the centre and dispersed smaller ones toward the edges. When he backlit the wall and photographed it in the darkness, there appeared a dazzling sphere.

Drill Holes Through Studio Wall was shown at Vancouver’s Gallery Jones in a collection called Trace Heavens and then travelled to galleries in Toronto, Zurich and Leipzig. Five editions sold, most recently for $10,500, and found favour with many critics. “Nizam has attempted and achieved more than clever light illusions,” wrote Dion Kliner in Canadian Art magazine. “Through a series of revolving metaphors, he draws a picture of an ancient celestial world meshed with our perceptual world meshed with the art world.” Drill Holes also “meshed” with the Internet—getting Pinned, shared and Instagrammed at astronomical rates. Several times after a popular art blogger had featured the image, Gallery Jones’s website received 12,000 daily hits.

But in January, the sharing went too far. Nizam’s girlfriend was walking through Oakridge Mall with her 12-year-old daughter when the girl pointed to a rack in American Eagle Outfitters. There was the starlit sphere printed on a T-shirt; they bought it for $29.95. When Nizam took a close look at it, he found the image had been mirror-reflected and rotated 180 degrees, but several of the light patterns aligned. “The thing I find frustrating is that for all the work you do to develop something and create depth, someone can just walk to the front of the line and say, ‘Great, look what I found.’”

The cavalier use of the image, and its mass production, concerns Shane O’Brien, one of the owners of Gallery Jones. A print such as Drill Holes, sold in a limited edition of five, has value because of its specialness. “I think if somebody had purchased James’s work, and then was walking by American Eagle Outfitters, they would say, ‘What the hell—that’s the same thing I have on my living room wall that I bought from Gallery Jones for $10,000.’ That would really detrimentally affect the market, my credibility and James’s credibility.” But after considering the cost of fighting a large American company, both O’Brien and Nizam decided against legal action.

Despite the seemingly long odds, one Vancouver lawyer says that such copyright battles aren’t necessarily futile—and in fact, the same digital forces that transported Nizam’s image around the world can also act to protect his artistic ownership rights.

Clint Lee, an intellectual property lawyer at Nexus Law Group LLP, recently represented Granted Clothing, a Richmond company that designs and sells high-quality hand-knitted wool sweaters inspired by those of the Cowichan people. In January 2015, Granted owners discovered, through pictures on Instagram, that another U.S. retailer, Forever 21, was selling two sweaters almost identical to their designs. The story got extensive play in print, broadcast and online—and within months, Lee reached a settlement with the clothing giant.

While the terms of the deal are confidential, Lee says that large fashion companies are motivated to settle copyright disputes now because of the effects of social media. “Any negative publicity can spiral out of control,” he says. “These clothing companies don’t want bad PR. They take a great deal of pride in bringing products to market that are, in their minds, unique—and their brand image is very important to them. So when they’re faced with a legitimate copyright infringement concern, they’re going to look at that very seriously.”

Lee advises his clients to protect digital images of their work with watermarks (a logo with a © for copyright, for example, or the artist’s name)—which, at the very least, breaks the popular perception that anything posted on the Internet is free.

Emily Danchuk is an attorney in Portland, Maine, who has represented more than 75 artists and designers, including Canadians, in copyright suits. She agrees that the scales have tipped in favour of creators; she works on contingency, and most of her cases have settled out of court. While in most countries copyright automatically belongs to the creator of a work, she says there are benefits to registering a work with the U.S. Copyright Office (for US$35 per work), as those cases tend to result in higher settlements. One of her clients, having registered copyright, has collected more than $100,000 in settlement in two separate legal matters.

“I really see protecting copyright and intellectual property as part of the necessary business model for small design companies or individual artists,” she says. “Art is like the backbone of every society, and so to say, ‘Oh, I can just rip this artist off,’ it really takes away from everything art means.”

You Be the Judge

Reconfigured Grid Painting No. 1When Vancouver artist Jeff Depner saw pictures of U.K. fashion designer Preen’s 2014 spring collection in Vogue magazine, he was suspicious. On his computer screen, he superimposed an image of the graphic pattern on the fabric onto an image of his work, Reconfigured Grid Painting No. 1.

“Anybody can see it’s identical,” he says. “I didn’t invent chevron, by any means, but the composition and for the most part the colours are the same.”

When contacted by Shane O’Brien of Gallery Jones, Depner’s agent, Preen’s creative director Justin Thornton responded that he had used parquet floors and patchwork quilts as inspiration for the collection, and Miami-inspired colours. “I can assure you we did not use any of Mr. Depner’s art work in our prints.”