On April 17, 2014, DeviantArt user Surgarteacat notified another user, J.J. Harrison (Rismo), that his artwork was appearing on t-shirts sold in Hot Topic.
Weeks later, Tumblr user Joyouscatus (post link no longer active) posted about the incident and comments quickly claimed that, even though Rismo said he didn’t give permission, that DeviantArt’s terms of service gave them the permission to resell the work without Rismo’s authorization.
This caused a severe backlash against DeviantArt that culminated in the company taking to their own Tumblr account to clear the air
DeviantArt does not retain any ownership nor right to ownership of any artwork posted to deviantArt. The point of question in our Submission Policy is one which gives us the right to present the artwork you submit to deviantArt on deviantArt.
DeviantArt went on to deny any involvement in the creation of the shirt. This argument was further supported by Harrison, who later said he learned the shirt was authorized by him through an agreement he signed with BOOM! Studios.
Realistically, the issue should have been over there. However, like all good stories the narrative of “DeviantArt and Hot Topic steals from artists” is alive and well.
This includes an August 19, 2017 post by on the Tumblr blog A Bloo’s Ramblings that, as of this writing, has over a quarter of a million notes.
The story is a false one but why has it stuck around? The reason is simple: Artists are understandably afraid of getting ripped off.
A History of Artists Getting Screwed
To be clear, artist paranoia about these issues is fairly justified. Consider this list:
- In 2007 a series of art theft scandals rocked DeviantArt, one of which saw a photographer’s image used on the cover of a pornographic DVD.
- In 2008 artists were upset that Photobucket was enabling the printing and selling of uploaded content, including clearly infringing material.
- In 2009 a Facebook RPG named Hammerfall ripped off the work from DeviantArt users.
- In 2011 Art4Love was a site that stole images from DeviantArt and sold prints.
- In 2014 a site named Pro-Folio was scraping portfolios from Behance, causing outrage.
And this is just a brief list of stories covered on Plagiarism Today. There are many, many more stories like these to be found.
To make matters worse, we’ve seen some pretty startling betrayals from host, such as Photobucket’s abrupt banning of image hotlinking.
Even DeviantArt itself, a site largely beloved by its users, hasn’t completely escaped suspicion, especially after it was acquired by website builder Wix.
Artists are so used to hearing about sites and services stealing from them that the paranoia is more than a bit understandable.
However, in this case, DeviantArt isn’t the bad guy, it’s simply a misunderstanding that was resolved three years ago.
But… Could it Happen?
The key question that everyone still asks is, could DeviantArt do it if they wanted? The answer is no, not without changing their terms.
If you look at their Submission Policy, section 5 says:
The rights and licenses granted to DeviantArt under sections 3 and 4 of this Agreement require DeviantArt to obtain Artist consent before DeviantArt makes any commercial agreement with anyone else to separately buy, license, re-sell or re-publish or commercially use any Artist Materials not in association with DeviantArt but as an individual work of art or as a group of works from a single Artist in isolation from any other works.
Basically the subsection limits DeviantArt’s broad license to use content solely to activities related to DeviantArt. As they said in their Tumblr post, the most worrisome thing likely to happen is that they might use the work in DeviantArt promotion.
Furthermore, the term of the license lasts until the user removes the work. Though small parts of the license survive removal (such as the right to make derivative works) the bulk of the license can be terminated at any time trivially. This would make such work very difficult to license even if DeviantArt had the rights.
So, without some significant changes to the site’s terms of service and related policies, there’s no way DeviantArt could do something like that. Any such changes would likely raise eyebrows long before any deal could be struck.
But What About Elsewhere?
Elsewhere is a different story.
The requirements of a copyright transfer make it unlikely that it could be done by a simple terms of service. The law doesn’t allow involuntary copyright transfers and sites that have tried to take copyright in a work, such as Craigslist in 2012, were quickly shouted down.
Still, it may be theoretically possible for a host to grant itself a non-exclusive license with enough rights to sell t-shirts, but it would be unwise.
While it may be easy to hide things in a terms of service, it’s not easy to hide them there for long. People will notice and, when they do, the sense of betrayal is very real. The Photobucket hotlinking change are an excellent example of that.
Hosts need to nurture positive relationship between themselves and their users. It’s unlikely a host with such a terms of service will do so long term, meaning its unlikely any host starting out with such terms will garter enough attention to benefit from its license.
This puts the focus back on hosts that change their terms after the fact, as Photobucket did, and those cases tend not to work out well either for the host.
In short, it’s theoretically possible but not likely, especially for any host that wants to be around for a long time.
I fully understand why artists are paranoid the DeviantArt story is one that was proved to be false three years ago. It didn’t happen then and it’s not happening now.
While it is theoretically possible that a host could abuse their terms of service to use artwork in this manner, it’s highly unlikely. Artists can and should remain vigilant about such abuses but DeviantArt is not the enemy here.
Still, this is just one piece of good news in a sea of bad news for artists, so I completely understand if it doesn’t make many artists feel better.
However, at least there is one less enemy for artists to worry about.