Who Stole My Pixels?
- Gunna Freivalde
- Sep 10
- 9 min read
Written by GUNNA FREIVALDE | AMG ATTORNEYS
Copyright is a hot topic among creatives, driven by the rise of digital art theft and the growing influence of generative artificial intelligence. If before the usual advice was, "Use watermarks", right now that advice is often useless as it is ineffective against those who copy or outright steal an artist's work. Watermarks, once the fortress protecting creative works, now seem like a paper shield in the digital battlefield.
The real question lies at the crossroads of copyright laws and AI. While copyright laws have long protected creativity, these laws right now feel like reading one of the early works of Franz Kafka – complex, full of twists and leaving the reader with more questions than answers. Steering through the copyright laws in the age of AI feels a bit like wandering through the hallways of Kafka's "The Trial", a confusing excursion where there is no sign of clarity. Being in the business of art and IP law, I can assure you that IP law has outgrown its initial idea of governing the relationship between creators and publishers. Today, virtually anyone can be considered a creator under existing copyright laws. The complexity of IP law has grown to such an extent that interpreting it often feels like trying to make sense of Damien Hirst's shark in formaldehyde.
The social media we engage with is governed by 100 page contracts, cryptic terms of service, and a maze of IP regulations, all of which have increasingly restricted access to cultural influence. The daunting feeling right now is that, if originally it was intended to promote and foster the advancement of art and creativity, right now it has slowly closed the curtain to cultural influence of creative works and restricted access to knowledge.
WHY COPYRIGHT MATTERS
While most of us – let's be honest, I mean those of us, simple mortals who can barely sketch a stick figure – might not create anything worth the pencil and paper.
But we sure can appreciate a good piece of original creativity. And sure enough, it is indeed perfectly fine to draw inspiration from others. Copyright laws are nodding their head here. The problem only starts when the artist tries to copy the whole thing and then claims, with a straight face, that Gustav Klimt's The Kiss came in a dream, gold leaf included! This is where the current copyright discussions get stuck – the frequent misinterpretation of how AI operates and the focus on creators gets louder voices than the end users who generate content using these systems. And this is where we should probably start sorting out: how the questions about authorship and ownership are addressed in the a
ge of technology.
Unfortunately, art theft is not trending only in those Netflix movies with a couple of dead bodies and cold hearted journalists involved, so getting some guidance on the copyright protection can be essential and save you from a couple of muddy conversations with the thief and expenses on a lawyer.
As we have been dashing through an era of amazingly rapid technological advancements, like blockchain and NFTs, things have become more and more complicated to understand and, most importantly – to catch up with the information. These technologies, while offering new ways to authenticate and collect creative works, raise questions about authorship at the same time. Let's take blockchain as an example. The decentralized and distributed nature of it can let you sleep at night with a promise that your digital art's provenance is more secure than your favourite coffee shop's Wi-Fi password. It's not the Fort Knox of the art world, but close enough for comfort.
But here is the thing: while you are thinking about copyright registration and being able to take your claim to court if everything else fails, licensing agreement writing and continuous monitoring do help a lot. However, they aren't foolproof. It's a bit like that one friend who always "forgets" their wallet when the pizza bill comes. Not even to mention the metadata and copyright. If seen from the general point of view, data is considered as a form of fact, and facts are not protected by copyright. This is an important point to understand because it highlights the limitations of copyright law in safeguarding raw data, leaving creators to find alternative ways to protect authorship. Not everything is black and white, though. Data may be eligible for what is known as "thin" copyright protection. The choice is limited to 2 possibilities: a sufficiently creative expression of data that has the requisite "spark" of creativity, or the data may be arranged or compiled in a sufficiently creative manner to qualify for copyright protection.
Why not get creative off the canvas, too? Why consider the usual Non-Disclosure Agreements and work-for-hire deals when you could explore alternative compensation models that fit your creativity and protect it at the same time? Damien Hirst is not only famous for having his collectors confused when it comes to the dates of his artworks but also with his NFT series when giving his admirers the choice between having one of his physical works hanging on the wall or having it stored in the computer. Now, that is an innovative idea of art ownership and definitely gives us grounds to ask ourselves: "How do
I value art?"
Because once you have tamed software to turn into your paintbrush instead of the traditional canvas, spark your creativity. Let the lawyers handle battles worth fighting for. And believe me, no battle is too little when it comes to defending your creativity. After all, art and law might seem to be from Mars and Venus, but in the end, they both require creativity to truly stand out.
WHAT DO YOU DO WHEN YOU REALIZE YOUR ART WAS STOLEN
In the age of endless scrolling and instant sharing, digital art theft feels as commonplace as finding your favourite coffee mug "borrowed" at the office. But here, it is more than getting used to drinking coffee from paper cups – it is about your creativity and author's rights, which means that defending them is not just a task but a necessity.
So, as Pablo Picasso mentioned, the healing features of the arts are undusting the soul, so let's not keep art theft under the dust either. Once you suspect that their work has been stolen or used without permission, the first step is to identify the infringement. This process may involve several methods, including conducting online searches, utilizing reverse image searching tools, and monitoring social media platforms. This proactive approach is essential in the digital age, where the rapid sharing of content can lead to widespread unauthorized use. Online searches can be conducted using search engines to locate instances of the artwork being displayed on websites or social media platforms. Moreover, you should consider setting up Google Alerts for the names or the titles of your works.
The first line of defense against external attacks should be your server and network security, for which you should fully employ virus scanners and firewalls to keep those cybercriminals at bay. Don't wait for the next security breach to update your software – stay one step ahead and automate the updates. While it is good to store data, choose the one you absolutely need because less data means less to lose. One of the sure bets is using cloud security. Cloud providers usually offer robust security infrastructures, including firewalls, intrusion detection systems (IDS), and encryption technologies to safeguard your data. And while on the same topic – let's move the public clouds – because they might as well be the unsung heroes of the digital world. Not only do they provide a higher level of security, but they also provide geographical redundancy so your data isn't stuck in one place if disaster strikes.
And at the end of the day, when all else fails, a DMCA takedown request can be your knight in shining armor. Don't forget Virginia Woolf's advice for a woman to have money and a room of her own! For you as an artist, this translates into investing in your copyright protection for the sake of your creative freedom and security. Because whether it is a bold digital painting or a cheeky NFT, your art deserves respect, recognition and the chance to inspire 24/7.
LICENSE SMARTLY WHILE CREATING BOLDLY
We are living in times where for the artists navigating today’s art world, licensing the created works and understanding the latest updates on the subject is like choosing the perfect little black dress—tailored to your needs, versatile, and essential. Licensing comes in two trés chic varieties: exclusive and non-exclusive. Exclusive licensing gives one lucky party the sole rights to your work, while non-exclusive licensing lets you share your work far and wide, opening doors without closing others. Platforms like Creative Commons simplify this, offering pre-written licenses for everything from “just look, don’t touch” to “go ahead and remix, but give me credit.” Or - take the bespoke route with a contract crafted by a lawyer (think Coco Chanel designing for you). Licensing ensures your voice—your art—echoes, and not without your permission.
And we cannot ignore another important subject to be discussed. The crown jewel of artistic rights - moral rights. These protect your name and the integrity of your work, ensuring no one tampers with or misattributes your masterpiece. Yet in today’s whirlwind of AI-generated content and NFTs, moral rights can feel as slippery as the banana peel on the ground. Imagine someone minting your painting into an NFT and calling it their “vision.” The audacity! Laws differ by country, but some jurisdictions allow you to demand proper credit or prevent harmful alterations to your work.
LOBBYING FOR THE MUSE
Lobbying for copyright reform in the age of AI is like trying to negotiate with a toddler – complex, and occasionally melting into chaos, but the stakes too high to leave the table without resolution. Oscar Wilde once claimed that art is the most intense form of individualism, but in an era where algorithms replicate masterpieces like Van Gogh’s Starry Night with near-perfect precision, the individuality of the artists is in jeopardy, threatened by the overwhelming collective data pool.
Advocacy is not just about protecting what’s been created, it is about crafting a future where art and technology can coexist. Art doesn’t merely replicate the visible world – it makes the invisible come to life. In the same spirit that Frida Kahlo turned her pain into masterpieces, today artists must turn the frustration with copyright laws into demands for recognition and reform.
Many artists have already begun transforming these struggles into victories. Take Lisa Congdon who faced plagiarism head-on, and rather than remain silent, she used the experience to educate other artists on how to protect their creativity and individualism, and push for stronger intellectual property laws.
Then there’s Shepard Fairey, whose legal battlefields over his Hope poster sparked discussions on transformative works and fair use, helping lay the foundation for what we are discussing today when it comes to copyright reform. Protecting art isn’t just about tasting victory on the court grounds; it’s about shaping the future of artistic rights and making sure that creativity – whether it is on canvas or in code – can continue to flourish in a world that’s becoming more digital every day. Because as pioneers in this quickly evolving new era of creativity, we also have the responsibility of making everything possible to pave the way for future generations and their possibility to use creativity without the risk of being plagiarized.
THE FUTURE OF ART PROTECTION
If the rise of AI teaches us anything, it’s that the future of copyright is going to be a roller coaster ride. It has burst onto the art scene, opening a new chapter of innovation while posing challenges for copyright law that are definitely a subject for discussions backed with buckets of coffee as there are so many nuances to be discussed – ownership, authorship, creativity...and the list continues.
If Franz Kafka in his trademark tone of skepticism commented on the evolutions fragile state being replaced by miles of new bureaucracy in his times, then we can just imagine what it will take to untangle those legal goldylocks to protect the creative liberation.
While AI-generated art offers opportunities for artistic exploration, it also reshapes the artistic landscape and raises many questions. Who owns the creation? Or who deserves the recognition? While some are convinced that AI itself should be eligible for copyright protection – something that seems as audacious as Tolstoy’s moral insistence in his War and Peace for time and patience. Suggesting that AI should be recognised as a creator in its own right within the scope of copyright laws may seem to be overly early timing for such a suggestion.
At the end of the day, the only thing we can be sure of in the digital art world is that the lines between creativity, ownership, and artificial intelligence are more blurred than a toddler’s finger-paint masterpiece. Art theft stings, but remember, no battle is too small when it’s your creativity at stake – do not hesitate to fight for your pixels.
Gunna Freivalde is the legal maestro behind AMG Attorneys, where art and law collide in the most harmonious of ways. Based in Belgium, Spain, and Switzerland, Gunna is a legal ninja, wielding her expertise across borders with finesse.
And there's more! You'll also find her donning her arbitrator hat at The Court of Arbitration for Arts in The Hague, Netherlands - because who says legal proceedings can't be a work of art?
When she's not busy untangling legal knots or advocating for artistic justice (those rare moments), you can catch her donning her superhero cape as Legal Trustee at Tigers4Ever, a UK-based charity dedicated to wildlife conservation. Saving tigers by day, slaying legal dragons by night or vice versa - it's all in a day's work!
However, Gunna's most important role is being a full-time mom to two artistic teenagers and a furry squad of three cats, a dog, a horse, and a ferret (because every legal eagle needs a fuzzy sidekick).
And when the chaos of the day finally settles, you'll find Gunna unwinding with a well-deserved glass of wine, dreaming of a world where art reigns supreme, and justice is served with a side of creativity. Because hey, who says you can't change the world one masterpiece at a time?
AMG ATTORNEYS
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