Kona artist sues online publisher

An online publishing company has taken a forbidden action with “Forbidden Island,” according to the image’s creator.

An online publishing company has taken a forbidden action with “Forbidden Island,” according to the image’s creator.

Brad “Tiki Shark” Parker learned a few months ago that his “Forbidden Island” painting had been uploaded to CafePress, a website that allows users to customize shirts, mugs, bags and a variety of other items. Art is automatically copyrighted, Parker said, so no one should be able to print his work without his permission — and without him getting paid.

In this case, someone’s decision to upload his work, likely by scanning either a giclee print or a calendar image, cost Parker a $250,000 contract with a Dubai company. That company was intending to use the image on 25,000 towels, but when they learned the image was also on CafePress, they canceled the order. They were supposed to have exclusive use of the image, said Abbas Hassan, Parker’s agent and senior vice president for Tiki Shark Art Inc.

Since filing a lawsuit late last year in the U.S. District Court in Honolulu, Hassan and Parker have heard from a number of other artists who have found their artwork illegally posted on CafePress. Recently, Hassan said, they hear from 20 to 50 people daily.

Within about “seven clicks,” someone can take a high resolution picture of a copyrighted piece of art and, without paying any of their own money, share the image on CafePress or similar sites, and begin selling products, Parker said.

“That’s really alarming,” he said. “It’s happening globally.”

This week, Parker’s attorney, David E. Smith, filed an amended complaint, removing one claim made under state law about unfair and deceptive business practices, replacing it with a claim about “unjust enrichment.” The suit also lays out a claim for copyright infringement.

Hassan said many artists don’t have the resources to take legal action. Another artist had a victory in a case against CafePress last week, when the U.S. District Court in San Diego ruled CafePress was not a service provider, which could be protected from some copyright infringement claims, because it has its own press and prints images on blank items.

The difference between CafePress and, say, Amazon, the court said, is that “CafePress is actively involved in the listing, sale, manufacture, and delivery of items offered for sale in its marketplace. … As such, the court cannot conclude, as a matter of law, that CafePress did not have the ‘right and ability to control’ the allegedly infringing activity.”

Smith said copyright information, often embedded in digital photos as metadata, is being stripped from copyrighted images, to allow those to be sold on CafePress. He said the company met the minimum requirement under the Digital Millennium Copyright Act, by having an employee who could take down copyrighted items, but wasn’t actively checking uploaded items for possible copyright issues.

Parker, noting the hours he spends each day creating a painting — the finished product could take up to several months — said that puts too much of a burden on the copyright holder.

“I don’t have all day to spend on the Internet policing my art,” he said. Plus, CafePress doesn’t offer on its site an easy way to have art removed once it is found to be copyrighted, he added.

The company is preying on artists, who may not know their copyright protections, he said. And he was surprised by CafePress’s argument to him that they only sold about $100 worth of merchandise bearing an image of his painting.

That’s the same as someone stealing his car and then claiming it wasn’t theft because they only sold it for nominal amount.

“Just because you only sold it for $100 doesn’t mean you didn’t break the law,” Parker said. “And I was going to sell that car for $250,000.”

CafePress attorney Lori Chang said Parker’s case is “without merit” in an emailed statement Thursday.

“CafePress facilitates the sale and printing of the products, but the content and images on the websites are created and owned by users, not CafePress,” Chang said. “The alleged image uploaded onto CafePress’ website was removed by CafePress in response to a notice from Brad Parker’s lawyer, David E. Smith, as provided for in the Digital Millennium Copyright Act, more than two months prior to the plaintiff filing suit.”

The company intends to “fully defend” itself against Parker’s claims, she added.

A hearing on CafePress’ motion to dismiss the case is scheduled for later this month.

Email Erin Miller at emiller@westhawaiitoday.com.