Anatomy of a Copyright Violation: "Scrapbooking TOU: What You Can NOT Do"

In case anyone finds it hard to understand what can NOT be legally done with my design resources, I've prepared some visual examples of a recent flagrant case of copyright violations and filesharing. In order to ascertain if my work is being used against my TOU, I actually buy the work where I find it in a store, download it, open it up in an directory/folder, and see what's in the zipfile, then compare images with images that are in my own store. From the single unfortunate error I've made in falsely accusing someone of copyright violation, I've learned to verify every case. Since there are so many examples in so many scrapbooking stores, I can't do this with them all, but this is simply the worst case I've encountered. There are many others, but there's just not enough time or wristpower to show them.

The basic rule of thumb is that a licensee can NOT resell or redistribute the original files, as is. Paying for a product and licensing it does confer the right of resale and redistribution. That is not permitted by my license or that any other artist that I know of. As explained in my License and TOU, the images must be incorporated into a derivative work in such a way that the original work cannot be easily extractable in its original form and hence compete with itself in the marketplace and thereby diminish its own commercial value to me, the original artist. This has always been in my license, it has never changed, it is standard in the license of 2d and 3d digital artists, and in brokerages such as Renderosity, DAZ 3d, RDNA, in scrapbooking brokerages such as Scrapgirls . . .and on and on. This license has been in my zipfile for each product since I've been in business. It's fairyly simple: The original work can not be simply resold or redistributed.

Please note: While a someone may or may not initially pay for a license to an product, in the act of resale/redistribution without the permission of the artist, they in effect become a digital pirate. Many digital pirates even operate in groups and pool financial resources to aquire intellectual or creative property (programs, DVDs, image resources) to resell or redistribute through filesharing sites. Filesharing by digital artists enables many people to illegally aquire, i.e., steal, the use of resources instead of paying for it. Paying for the license does not confer the right to resell the images.

"Commercial use" does not mean the images can be resold as is. This is apparently news to many groups of scrapbooking kit makers. Very few digital artists grant outright resale of the original work, any more than authors give away their intellectual rights. Licenses are for the USE of the work under specific circumstances. Some ignorant or naive people fail to understand this and some unethical people simply ignore it. But CU or Commerical Use does NOT mean you are buying a creative resource like a pair of socks and have the right to resell it.

Obviously, this means that the original images may not be used, as is, or with minor changes, to create scrapbooking kits. "Minor Changes" includes hue shifts and small graphic additions which do not inherently change the work. What has been increasingly added in my TOU page over the years is further explanation for dense people who continue to claim they do not understand what "resale and redistribution" and "derivative design" means. When you read what is below, remember that Seachell claims not to understand what this means, LOL.

Here is the promo image from a scrapbooking kit which was given away as a freebie on the website of Seashellscrapz, in which many elements from my product, "Wedding Decor" and my "Antique Roses" were redistributed (given away) as freestanding elements, in png files with transparent backgrounds, in exactly the same condition as were provided in my original zipfile:

I downloaded and unzipped the zipfile from the "freebie" kit. As you can see from this screenshot of my hard drive below (excluding the wedding cake image which is fair use in a derivative design), there are 10+ images that were simply lifted out of my products, resaved as png files and relabelled with the name of Seachell. Below are shown only 10 examples that were unzipped into a file folder. I'm just showing this part of the content of the zipfile for illustration of the contents of the zipfile of this "freebie" download of filesharing. Note the name of Seachell has been now been attached to my digitally painted work.

This is a good example of what is NOT permitted by my license and Terms of Use and what will result in legal action and public exposure. Seachell was filesharing the images, in their original condition, in this kit on her blog through logger. Yes, this is filesharing: taking the images which were digitally painted by me, putting them as is into another file, and making them available to the world from a link on her site. I filed DCMAs with the filesharing company, of course, but Seachell immediately found another filesharing company, outside the U.S. This is typical for digital pirates, who can find new filesharing companies as quickly as their links are disabled by DCMAs.

This is one of the problems with digital piracy: fighting copyright violations through legal channels is an endless task which interrupts normal business and costs money and time. It's costly and there has to be something "collectable" on the other end to make a lawsuit worth pursuing, right? You cannot collect from digital pirates, they are the Internet equivalent of street hooligans. Hence the value of public exposure over legal steps or . . ."being nice about it". Once you've been gang raped by a bunch of digital pirates, you might as well scream out loud.

Prior to downloading this zipfile and seeing what was inside, I had started out in a fairly soft voice and contacted Seachell regarding violations related to other products. She flatly denied this kind of usage. I asked that links to my work on her Blog be removed. She said she would. Time passed. I accidentally discovered worse violations and products being sold on her blog, being distributed through PSP Google and Yahoo groups, and sold on numerous scrapbooking stores. When confronted again, in a harsher tone, she threatened to put the "freebie" back up and continue to share my files. At that time, she still had products on her site which contained my work, used a way that flagrantly violates my copyright (edited after the links have been removed by Blogger, perhaps temporarily? who knows?).

The image below shows files from a product of Seachells which I bought and downloaded from Nameless Scrapbooking Brokerage, which contained many of my digitally painted images from several products in my store ("Bunny Bower"), re-labelled with Seachells name, repackaged into her product and resold against my license and TOU in a scrapbooking "kit" called "Easter Day":

You see that tan-colored, digitally painted rabbit on the top right above? When I first inquired about that in the kit, Seachell told me it was in compliance with my TOU because she had added grass to it, thereby changing it into her own "design", and she sent me a picture of the bunny with some grass kind of scribbled behind it. But when bought the product and found that the image of the rabbit, digitally painted by me, was being resold, exactly as is, with no additional grass added to it I realized Seachell had lied to me (again) and added the grass ex post facto not thinking I would just go and buy the product and find out for myself. Further confrontations ensued, followed by assertions of the the right to use the images however she wanted, because she "bought it", etc., followed by ominous statements, i.,e., now you get my bad side! This is typical of digital pirates: serial lying, denial, followed by more lying like a 2nd grader, followed by outraged indignation and assertion of their right to do as they wish anyway. Logic does not play a part in the discussions at this point.

Below is a composition of mine from the same Seachell kit which is sold in my store in the product "Bunny Bower". It is Seachell's mistaken contention that because she "purchased" the product, she has the right to resell or redistribute for free whatever is in it. No, this is neither legally nor ethically correct and is not even an acceptable behavior in professional scrapbooking communities, only within criminel filesharing communities. Read FAQ For DigiScrappers Here.

Naturally, Seachelll labels this Easter composition of mine, lovingly painted and composed by me, Seachell_EasterDay_Paper1.jpg. This is clearly against my TOU and that of every digital artist I know: do not redistribute or resell the original images as is (in their original form without incorporating them into a new derivative design in such a way that they can not be easily extracted and resold). Below is one of the exact images from a product she was sold and it is the exact image she was reselling. It is against my TOU and license to resell it as is and always was. This is the essence of resale/redistribution/filesharing/digital piracy. She would naturally have the right to use this image in her commercial projects but not to resell or give it away, as is, to hundreds/thousands of people. Get the difference yet?

Please note that under no convoluted logic does licensing graphics - even with a licensing fee - entitle the buyer to resell them in this way. Read the TOU and license. It entitles the licensee to the use of the images under the Terms of Use specified by the artist. It does not put the licensee in the market position of the original artist, with the right to distribute the work as the original copyright owner. No, it's not like buying socks at Wallmart, as filesharers argue. And no, contrary to what Seachell ignorantly argues, there does not have to be a copyright filed on every piece of creative or intellectual property. Read "10 Myths of Copyright Explained" if you are confused about that. It is not true that licensing digital art confers the right to resell the original work.

Next example from Seachell's fake "designer" scrapbooking "kit" from the same store, Nameless Scrapbooking Brokerage, in her "Halloween Night" "kit", almost completely composed of design elements from my "Halloween Graveyard" product: this is a screen shot of a segment of the images I unzipped from the zipfile of her product, showing the exact images I sell in my original product . . .

The images are rendered AND composed 3d images based on 3d models and textures, which I am within my legal rights to sell, based upon the license and TOU of the products which I in turn licensed from the original 3d artists. I'm not reselling the original models and textures. According to the licensing arrangement, I'm legally selling the renders of the posed, lit, postworked renders of the licensed models and Seachell is illegally reselling the as is images of my work. See my TOU page where I explain how copyright works for the use of 3d imagery.

Among the unkindest cuts of all, Seachell includes a digitally painted cat portrait from my "Fantasy Cats" collection in this Halloween "kit" in this group at Nameless Scrapbooking Brokerage and on her own blog, which I purchased and downloaded to verify the copyright violation:

Doggone it, I really love this compsition. I hate to see it being resold by a scrapper pirate who flatly claimed impunity to resell and redistribute my work against my TOU and license). Seachell could not do this original graphic work. But she could have found a way to use it creatively as a design resource without reselling it in this way and undermining my modest living. She just moved the digital painting from my zipfile product into her zipfile product and resold it, against the TOU/license which has always been the same and is the same for every digital artist and every brokerage everywhere. And she is still maintaining that she will punish me for the exposure by . . .guess what? filesharing so much of my work that I will never sell anything again, LOL. Gang raped by filesharing Digital Pirates. I'll bet she can do that because she's really got a lot of practice behind her.

The problem is that Seachell - and filesharing digital pirates like her - can't paint and render much themselves. They wannabe artists but they don't want to wait for the years of hard work to get the skills. They love pretty things, but they hate the people who make make them. Instead of using the images as intended, as a resource which most of my terrific customers of good will can use to actually create derivative work, they just rename the images and throw them into a zipfile and pretend that they have made something themselves. They call that a "kit" and treat the person who actually made the original work with contempt by refusing to observe the most basic rule of the TOU and copyright: do not simply resell or redistribute the original images, as is.

I'm pretty familiar with this armtwisting. There must be some kind of school for this, because they all show the same behavior and almost the same verbal routine. When confronted, it is common for the reseller/redistributer to defensively attack and threaten the artist who is confronting them. First they lie and deny, then they rationalize and justify. Then they ironically accuse you of being jealous of them. They will probably claim that they are fighting the Evil of Greed and stand for Moral Purity. Then they fly into a kind of vampire-with-a stake-through-their-heart frenzy of defiance. They claim not to understand the weirdness of copyright complexity and are being persecuted for absolutely no reason. Then the threats begin. Frequently, redistributing pirates will threaten a greater loss of income through even more redistribution or by bringing pressure from their pirate cohorts to blockade sales of products. Seachell: It's my hard work here! You won't sell nothin'! There may be claims that they are being threatened. My son has been threatened, the police are on the way! The FBI is at the door! It's all a smokescreen to protect the right to take what do whatever they want with what is really not theirs.

The first sentence in the first email after I contacted Seachell was "It's my work". It wasn't her work, it was, literally and demonstrably, my work. To the pixel. Being resold and redistributed by her. I downloaded the zipfiles from her blog and bought the other products from scrapbooking sites where she was selling them and opened up the zipfiles and clearly demonstrated that she was reselling my work under her name in violation of my clear TOU which forbids the resale of the original images. After zigzag lying and misleading me repeatedly, she then engaged in malicious filesharing to punish me for exposing the original digital piracy.

I really like the David Letterman approach: just out the abuser. People like Seachell actually get away with this kind of petty crime all the time. I found out about this series of copyright violations from numerous people who knew about other violations of other people and tattled on her again. But there's no reason not to warn the public and at least try to exert some social influence against petty cyber crime. Just because it's petty, that doesn't mean it's harmless. Filesharing and digital piracy are not harmless, they cause loss of time and income to a lot of small business people. And it's a form of extortion: you gotta gimme what I want and I get to do as I wish . . .or else you'll really be sorry. It's the same whether it's the bully taking your lunch money on the school playground, or the extortionist demanding a few million bucks from David Letterman, or . . .something worse.

Images licensed from me CAN be used to create derivative works for personal usage and commercial sale. Anybody with a little energy and creativity can do wonders with such great design resources, have fun and even make money. I have lots of great customers who do that.

But the images CAN NOT be simply RESOLD AS IS or redistributed or given away as I've illustrated here. It is legally and ethically wrong to do so and it's directly harmful to my business interests and my modest income. Many friends and colleagues who have small businesses just like mine know exactly what I'm talking about. My own customers are always the ones who tell me about people like Seachell.

My Terms of Use are very generous but this practice of outright filesharing in scrapbooking kits must stop. Seachell is one of the worst cases I've seen, but she's got lots of copycats around her. Professional scrapbooking designers do NOT do this. Digital pirates will always trade free graphics and cause losses of income to working class artists. But we might as well just turn the rock over and point out where they are doing it.

It's a social thing, eh? Open acknowledgment of what it is is the first step: this is what it is: a specific social group, a specific petty crime subculture is dedicated to poisoning the working class business atmosphere for working class artists and business people who work for a living on the Internet and who need to be able to trust their customers. And vice versa. If basic trust is eroded in ecommerce for small business owners on the internet, then ecommerce will truly be ONLY owned by large corporations, eh? That's why there are simple rules and ethics even on the Internet.