Digital Art Theft and Copyright: What Artists Can Do

What counts as digital art theft under copyright law?

Digital art theft, in legal terms, is copyright infringement: someone reproduces, adapts, distributes, or displays the original expression in a work you own, without your permission or a legal defense. Under 17 U.S.C. § 102(a), “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The listed categories include “pictorial, graphic, and sculptural works.” A digital file you can view on a screen meets the fixation part of that test.

Protection does not wait for registration or a copyright notice. In a 2019 decision on registration, the U.S. Supreme Court explained that “the Copyright Act safeguards copyright owners, irrespective of registration, by vesting them with exclusive rights upon creation of their works and prohibiting infringement from that point forward.”

Subject to the exceptions in sections 107 through 122, 17 U.S.C. § 106 gives the owner “the exclusive rights to do and to authorize” these acts, among others:

• “to reproduce the copyrighted work in copies or phonorecords,” which a person does by downloading your image and reposting it;
• “to prepare derivative works based upon the copyrighted work,” which a person does by tracing or reworking your piece;
• “to distribute copies or phonorecords of the copyrighted work to the public by sale,” which a seller does by putting your design on shirts or prints; and
• “to display the copyrighted work publicly,” which a website or account does by showing your art.

Resemblance alone is not infringement. In Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), a case about telephone directory listings, the Court stated: “To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” It added that “a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.” Under § 102(b), protection also does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” Another artist who independently paints the same subject or concept has not copied your piece. More on telling the two apart is in how to spot copyright infringement.

How does ownership work when you sell or commission a piece?

Selling a painting or a print transfers the object, not the copyright, and a client who commissions your work does not own its copyright unless a signed writing transfers it or a narrow work-made-for-hire rule applies. Under 17 U.S.C. § 202, “Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.” The statute adds that transfer of the object, “including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object.”

Under 17 U.S.C. § 201(a), “Copyright in a work protected under this title vests initially in the author or authors of the work.” For a work made for hire, “the employer or other person for whom the work was prepared is considered the author for purposes of this title” under 17 U.S.C. § 201(b). A work made for hire includes “a work prepared by an employee within the scope of his or her employment” under 17 U.S.C. § 101. A commissioned piece by a freelance artist is a work made for hire only if it falls in a listed category, such as “a supplementary work” or “a contribution to a collective work,” and only “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” A supplementary work includes “a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating,” or explaining it, which can describe illustrations for someone else’s book.

Outside those rules, the client needs a signed transfer. Under 17 U.S.C. § 204(a), a transfer of copyright ownership, other than by operation of law, “is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed.” Under § 101, a “transfer of copyright ownership” includes an “exclusive license,” “but not including a nonexclusive license,” so the signed-writing rule of § 204(a) does not cover a nonexclusive license. I suggest putting copyright terms in your commission agreement before you start, because the signed writing settles who may make copies later. The drafting side is covered in copyright transfer agreements. Ownership matters because under 17 U.S.C. § 501(b), “The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action.”

Physical originals carry one more set of rights. 17 U.S.C. § 106A gives the author of a “work of visual art” the right, among others, “to claim authorship of that work,” and “Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner.” Those rights “may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author.” Section 101 defines that term to include “a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author,” and also “a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.” Its exclusions include any “electronic information service, electronic publication, or similar publication,” “any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container,” and “any work made for hire.”

Why does registration decide what you can recover?

With narrow exceptions, you cannot file a federal copyright lawsuit over a U.S. work until the Copyright Office registers it, and the date you register decides whether statutory damages and attorney’s fees are available. Under 17 U.S.C. § 411(a), “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” If the Office refuses, the same subsection provides that “where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.”

In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019), a news organization sued a former licensee that kept displaying its articles online, and the suit was dismissed because the Register had not yet acted on the applications. The Court held that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.” Late registration does not erase earlier claims: “If infringement occurs before a copyright owner applies for registration, that owner may eventually recover damages for the past infringement, as well as the infringer’s profits.”

Statutory damages and fees are different. 17 U.S.C. § 412 provides that “no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for” “any infringement of copyright in an unpublished work commenced before the effective date of its registration,” or “any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.” I suggest checking the current text of § 412 before relying on that window. Under § 101, publication “is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership,” so selling prints publishes a piece, while “A public performance or display of a work does not of itself constitute publication.”

For a body of work, a Copyright Office regulation offers a group option. Under 37 C.F.R. § 202.4(c), “a group of unpublished works may be registered in Class TX, PA, VA, or SR with one application, the required deposit, and the filing fee,” if conditions are met. Among them, “All the works in the group must be unpublished,” “Generally, the applicant may include up to ten works in the group,” and “All the works must be created by the same author or the same joint authors.” I suggest registering finished pieces in groups while they are still unpublished, because registration before an infringement begins keeps statutory damages and fees available under § 412. The broader case for that habit is in why registration matters.

How do takedown notices work on platforms and print-on-demand sites?

A takedown notice is a signed, written notice to a platform’s designated agent that identifies your work and the copy and includes a good faith statement and a statement under penalty of perjury, and a platform that wants to keep its protection from liability must act on a complete notice. Under 17 U.S.C. § 512(c)(1), “A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider” meets listed conditions.

Two of those conditions matter for an artist dealing with a marketplace. The service provider must be one that “does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity,” and one that “upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”

Section 512(c)(3)(A) says the notice “must be a written communication provided to the designated agent of a service provider that includes substantially the following”:

1. a physical or electronic signature of a person authorized to act for the owner;
2. identification of the copyrighted work or, “if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site”;
3. identification of the copy and information reasonably sufficient for the platform to locate it;
4. your contact information;
5. “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”; and
6. “A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

A sample is in the copyright infringement notice template. The notice carries risk if it is wrong: under § 512(f), “Any person who knowingly materially misrepresents under this section” that material is infringing is liable for damages caused when the platform relies on it. I suggest confirming ownership and weighing fair use before you sign, because the statement covers whether the use is authorized “by the copyright owner, its agent, or the law.”

The copier can answer with a counter-notice. Under § 512(g)(2)(C), a platform keeping its protection “replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.” I suggest checking the current text of § 512(g) as soon as a counter-notice arrives and registering early, because § 411(a) bars that suit until registration has been made.

How do watermarks, signatures, and copyright notices protect your art?

A watermark, signature, or credit line that carries your name is copyright management information under federal law, and a person who knowingly strips it to conceal an infringement faces a separate claim with its own statutory damages. Under 17 U.S.C. § 1202(b), no person may, “without the authority of the copyright owner or the law,” “intentionally remove or alter any copyright management information.” The civil claim requires that the person act “knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.”

Under § 1202(c), the definition reaches information conveyed with copies or displays of a work, “including in digital form,” and it lists several categories. They include “The name of, and other identifying information about, the author of a work,” the title and copyright notice, and the terms of use. Under 17 U.S.C. § 1203, “Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.” On damages, the injured party may elect statutory damages “for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000” before final judgment. I suggest keeping your name or notice on the files you post and in their file information, because removal of that information is what § 1202(b) reaches.

A copyright notice is optional. Under 17 U.S.C. § 401(a), “a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived.” The notice uses “the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”,” with the year of first publication and the owner’s name. Its legal benefit is in § 401(d): “If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages.” That benefit depends on a published copy, a term the registration section above explains.

When does copying your art count as fair use?

Copying is fair use, and not infringement, when a court weighing the four factors in 17 U.S.C. § 107 finds for the person who copied, and a commercial use that serves the same purpose as your work is likely to weigh against the copier on the first factor. The statute lists purposes “such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” and directs courts to weigh four factors:

1. “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the work as a whole; and
4. “the effect of the use upon the potential market for or value of the copyrighted work.”

The U.S. Supreme Court addressed visual art in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). A photographer licensed her portrait of Prince in 1984 as an “artist reference” for a magazine illustration, and Warhol used it to create a series of works. The Court held that when an original work and a later use “share the same or highly similar purposes, and the secondary use is of a commercial nature,” the first factor is likely to weigh against fair use, absent some other justification for copying. It also explained that an earlier fair use decision “cannot be read to mean that § 107(1) weighs in favor of any use that adds some new expression, meaning, or message.”

The Court limited its analysis to the first factor and to one use, “AWF’s commercial licensing of Orange Prince to Condé Nast,” and it did not decide whether creating, displaying, or selling the original Prince Series works was fair use. It agreed with the Second Circuit that the first factor favored the photographer and affirmed. The Court also explained that “The same copying may be fair when used for one purpose but not another,” so a critic reproducing your piece in a review stands differently from a seller putting it on products. More on the factors is in fair use.

How do the Copyright Claims Board and federal court compare for artists?

The Copyright Claims Board is a federal tribunal inside the Copyright Office for smaller claims, with capped damages, each side paying its own attorney fees, and participation the respondent can decline, while federal court offers larger remedies at a much higher cost. Under 17 U.S.C. § 1502(a), the Board serves “as an alternative forum in which parties may voluntarily seek to resolve certain copyright claims regarding any category of copyrighted work, as provided in this chapter.”

The Board’s limits, from 17 U.S.C. § 1504(e), are these:

• For works timely registered under § 412, “the statutory damages may not exceed $15,000 for each work infringed.”
• For works not timely registered, “statutory damages may not exceed $7,500 per work infringed, or a total of $15,000 in any 1 proceeding.”
• A party “may not seek or recover in that proceeding a total monetary recovery that exceeds the sum of $30,000,” exclusive of fees and costs awarded for bad faith conduct.
• Except for bad faith conduct, “the parties to proceedings before the Copyright Claims Board shall bear their own attorneys’ fees and costs.”
• A determination includes “a requirement to cease conduct” when a party agrees “to cease activity that is found to be infringing, including removing or disabling access to, or destroying, infringing materials.”

You may file once the Copyright Office has your application: under 17 U.S.C. § 1505, a claim may proceed after “the legal or beneficial owner of the copyright has first delivered a completed application, a deposit, and the required fee for registration,” though “the Copyright Claims Board may not render a determination in the proceeding until” a certificate has issued. The respondent may decline: under 17 U.S.C. § 1506(i), a properly served respondent “shall have a period of 60 days, beginning on the date of service,” to opt out, and “If the respondent opts out of the proceeding during that 60-day period, the proceeding shall be dismissed without prejudice, except that, in exceptional circumstances and upon written notice to the claimant, the Copyright Claims Board may extend that 60-day period in the interests of justice.”

Federal court is the U.S. District Court; for a case filed in Minnesota, that is the District of Minnesota. For copying by the United States, see 28 U.S.C. § 1498(b), which provides for “an action by the copyright owner against the United States in the Court of Federal Claims”; for copying by a state, Allen v. Cooper, 589 U.S. 248 (2020), held invalid the 1990 statute that sought to strip the States of their sovereign immunity from copyright infringement suits, so the general rule that federal courts cannot hear suits brought by individuals against nonconsenting States applies. A court may “grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright” under 17 U.S.C. § 502(a). Under 17 U.S.C. § 504, the owner recovers “the copyright owner’s actual damages and any additional profits of the infringer” or, if § 412 allows, statutory damages “in a sum of not less than $750 or more than $30,000 as the court considers just.” For willful infringement, “the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000”; for an innocent infringer, it “may reduce the award of statutory damages to a sum of not less than $200.” Under 17 U.S.C. § 505, “the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs,” which can run against a losing owner. Federal law also sets a limitations period in 17 U.S.C. § 507(b), which I suggest checking when you find the copy, because registration has to come first.

In my experience, litigating a copyright case in federal court typically costs far more than $30,000, the top of the ordinary statutory damages range for one work. I suggest considering the Board for a modest claim against a private U.S. copier, because each side generally bears its own fees there. Under § 1504(d)(3), “A claim or counterclaim by or against a Federal or State governmental entity” is among the claims “not subject to determination by the Copyright Claims Board”.

How does Minnesota law protect artists beyond copyright?

Minnesota cannot give you a second copyright claim, but Minnesota law reaches what a seller does beyond copying, such as marketing knockoffs as products you sponsored or approved, and it protects physical work you consign to a dealer. Under 17 U.S.C. § 301(a), rights equivalent to copyright “are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.” Section 301(b)(3) preserves state claims for “activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106.”

Under Minn. Stat. § 325D.44, subd. 1, “A person engages in a deceptive trade practice when, in the course of business, vocation, or occupation, the person” “causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services,” or “represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have.” A shop that sells your design labeled as official or artist-approved merchandise may fit those clauses. Under subd. 2, “a complainant need not prove competition between the parties or actual confusion or misunderstanding.”

The remedy is mainly an injunction. Under Minn. Stat. § 325D.45, subd. 1, “A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable.” The same subdivision limits relief for copying: “Relief granted for the copying of an article shall be limited to the prevention of confusion or misunderstanding as to source.” Under subd. 2, the court may award attorney fees to the prevailing party if “the party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive.” Under 28 U.S.C. § 1338(b), federal courts hear “a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection or trademark laws.”

For physical work, Minnesota’s art consignment statute applies. Minn. Stat. § 324.01, subd. 3, says that art “means a painting, sculpture, drawing, work of graphic art, photograph, weaving, or work of craft art,” and subd. 6 says that consignment “means the delivery of possession of an art work by an artist to an art dealer by which no title to, estate in, or right to possession of, art, superior to that of the artist vests in the art dealer.” Under Minn. Stat. § 324.03, “the work of art is property held in trust by the consignee for the benefit of the consignor and is not subject to claim by a creditor of the consignee,” and “the proceeds from the sale of the work of art must be held in trust by the consignee for the benefit of the consignor.” That rule fits the prints and originals you leave with a gallery or dealer to sell.

How should you respond after finding a copy of your art?

The step should match who copied your art, what the copy costs you, and what the copier can pay. A takedown fits a repost or a marketplace listing, a demand letter or the Copyright Claims Board fits a modest commercial use by a private U.S. seller, and federal court fits a private business whose use is hurting your sales and who can pay a judgment.

The copyright claims I have brought for clients have typically been against a competitor, and typically one with the money to pay, because a judgment still has to be collected after you win.

A practical sequence:

1. Evidence. I suggest saving screenshots of the copy showing the account or shop name, the date, and the web address, plus your original file with its creation date, because a copier can delete a listing once it hears from you.
2. Ownership. I suggest confirming whether you, a client, or an employer owns the copyright under the rules above, because under § 501(b), “The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action,” and a takedown notice needs “A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
3. Takedown. A notice under § 512 fits when removal is all you need.
4. Registration. I suggest registering the work before any suit, because under § 411(a) “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.”
5. Demand. A letter fits a seller that profited. Whether to send a cease and desist letter first depends on the copier and the stakes, and a negotiated payment is typically less than a court could award, as explained in settling a copyright claim.
6. Forum. The Copyright Claims Board fits a smaller claim against a private U.S. copier, and federal court fits a larger one. When the copier is a federal or state government body, the forum section above names the separate rules for that claim.

If the copy appeared as a repost on social media, the same steps are walked through for that setting in what to do when someone copies your social media post.

Protecting Your Digital Art

If you own the copyright in your art, as its author and without a signed transfer or a work-for-hire arrangement, you decide who may copy it, subject to fair use and to a buyer’s right to resell a lawfully made copy. Federal law supplies the remedies: a platform takedown, the Copyright Claims Board, or a federal lawsuit after registration. Minnesota law adds a deceptive trade practices claim when a seller markets your work as something you sponsored or approved, and it holds consigned physical work and its sale proceeds in trust for you. I suggest registering finished work early and keeping your name on the files you post, because registration timing controls statutory damages and fees, and stripping your name can support a separate claim. Related questions on ownership, licensing, and enforcement are collected on the copyright practice page.

If you would like me to look at a copy of your work and tell you which of these steps fits it, email [email protected] with links to your original and the copy and a short description of who is using it.