Amanda Kirk/Samantha Cole
Every once in awhile, but much more often than he'd like, Avi Ehrlich scrolls through Instagram and stops at a targeted ad for his own clients' work. The ad, however, is coming from a multi-million dollar publicly traded company, and not the punk art shop he's running from his bedroom.Then, he says, he screams into the Twitter void.
Ehrlich runs Silver Sprocket, an art crew that helps artists navigate the world of self-promotion, publishing, and production, as well as the annoying legwork that comes with being an independent artist, like sending takedown notices to companies using your copyrighted work without permission. Or going to said company's headquarters in person.
One of the most-lifted designs belongs to artist Amanda Kirk. It's a drawing of a smiling sloth, proclaiming its life's motto: "Nap all day, sleep all night, party never."This ultra-chill dude has been ripped off and resold by users on Redbubble—each time forcing Ehrlich to send the company a takedown notice. At least 26 different Redbubble user accounts have uploaded this same exact artwork, claiming it as their own and making it available for sale well over 50 items, Ehrlich told me. This has been going on since Kirk posted it on her Tumblr in 2013.After each notice, the item for sale is removed, but it respawns elsewhere on the site, sometimes in a matter of days. There's one up now, even, in sticker form.
Fans of Silver Sprocket post photos of their new stickers from Redbubble to social media and tag the crew, unaware that what they've purchased is a counterfeit.It's not only Redbubble users who love—and love to bootleg—Kirk's drawing. It's listed on Amazon from a seller simple called "Sloth Shirts," on Etsy in embroidery and wall art forms, and Zazzle as a t-shirt.Since the Redbubble offices are down the street from his own home in San Francisco, and continued emails or tweets weren't getting him the answers he wanted, Ehrlich recently stopped in for a visit. He went in with a bunch of the sloth stickers, the registered copyright, and a copy of an email he sent to CEO Martin Hosking and Redbubble support.
"I said, 'Hey, you guys seem to really like this design, this is for your crew… I was really nice, I wasn't trying to be an asshole," he told me.
Ehrlich said they offered to let him talk to their lawyers about it, but he declined, saying he's not interested in taking legal action yet—he just wants to know whether they care. "I'd rather be doing literally anything else," he said."We have a robust approach to repeat infringers and are constantly working to enhance our procedures and the tools we use in this area," Hosking told me. An investor presentation from November claims that the company pays "close attention" to intellectual property regulatory obligations.While Hosking was unable to discuss individual claims with Motherboard, he did say that Redbubble receives a large number of takedown notices, explaining that it's what one might expect for a company with over 10 million images and 400,000 artists."The amount of work that is disputed through the takedown process as a percent of the total amount of work on the site is very small," he said.Redbubble generates revenue, according to their shareholder prospectus materials, through a service fee for connecting the artist, customer, and fulfiller. They act as none of the above, but similar to Silver Sprocket, are a marketplace middleman for artists and customers.Part of its growth strategy involves "improving the artist's experience and increasing artist‑related marketing and promotional activities." Redbubble sees artists leaving the site as a major risk to their growth; 45 percent of artists on Redbubble don't sell on other websites, but if they have a negative experience and pull their stuff from the site, it hurts the company.
Getting sued for intellectual property infringement is another big risk, but only two lawsuits have been brought against the company since its founding: From The Pokémon Company and the Hells Angels.James Grimmelmann, a professor of law at Cornell Tech and Cornell Law School, told me that on the surface, this might seem like a Digital Millennium Copyright issue. But since Redbubble is a marketplace for physical, printed items, it's more complicated. "Instead we're in the tangled world of liability for primary and secondary copyright infringement," Grimmelmann said. "And that's gonna be a mess."
If Redbubble made and sold the items itself, it would be direct copyright infringement. But the more likely argument is that the company is secondarily liable for the users who are creating infringing items and selling them, and profiting off of commission. Even that would be a case of uncertain outcome, since it's difficult to say if or when they know about infringements before a copyright holder brings it to their attention.Unfortunately, Grimmelmann said, there are no good answers to stopping the deluge of infringement. "The choice is not whether we can protect them, but who gets screwed," he said. Is it the artists, the marketplaces, or the users re-posting the designs who get the boot?"I've yet to see a creative community that's navigated this entirely successfully," Grimmelmann said. Tracking down the users who post stolen designs might help, he said—a service Redbubble does offer when copyright holders send takedown notices.That said, the Silver Sprocket crew and Kirk aren't ready to take legal action yet. It's just a bummer to their craft and morale."This impacted the way I do art for sure," Kirk said. "I abandoned the Tumblr completely after other drawings were also lifted and copied. If I complained about how this was a problem online I got actual hate mail that I was uncreative anyway, and that by putting it online I was basically saying it was free for anyone to use… Plus it kept happening!""I'm an anarchist, I'd rather not deal with this shit." Ehrlich said, with a sigh. "But people aren't being nice."