I have recently run into some instances of improper use of my digital fairy wing overlay stock, and felt it was important that I make some clarifications about what is permitted use and what is not.
Below is an example of use that is in violation of my Terms of Use.
This graphic is just an example that I put together myself, due to the issue of printed fabric mermaid tails sometimes containing unlicensed images. Some well known tail makers have had their specific photos printed on mass produced mermaid tails, and recently the subject of using my wings on mermaid fins came up.
The terms of my stock licenses are pretty clear, and I did my best to plaster them everywhere I could - on the listings themselves, included in the downloaded zip file and even within the file info.
These particular wings shown above, the Bee Fairy Wings stock overlays, also require credit to me wherever posted publicly due to the extensive files included for the low price.
My terms require my permission to be used commercially, wherever using my work prominently on the product increases its value and will be sold wholesale and retail to the public, as would be the case if my wing stock was used as in the above example of wearable mermaid tails with my image printed on them as the primary aesthetic of the product.
The way it IS permitted, is in a larger body of artwork - a scene with a fairy in it where my wing images are added to a person or creature’s back, or, a scene with a mermaid where the wings are added as fins.
Basically if my work is the central part or the ‘heart’ of the work and removing them would remove the value from the product to a very large extent, it is not transformative enough to adhere to my license terms.
Even with these qualifiers in place, if more than 1,000 prints will be sold, it requires a commercial license.
If there is ever any question about the terms, please, ASK.
A commercial license would have an additional cost and may require a licensing agreement with royalties paid on top of an initial payment, especially if the agreement must be made after an IP violation is caught.
Even with stock that does not have the credit requirement, the end user must NOT take credit for the artwork or refer to it as being ‘exclusive’ in any way.
Violation of my terms could result in barring that person or company from using them again and a fee for unlicensed commercial use may be requested regardless of whether many sales were made.
I register my work and FYI, statutory damages can apply even if no sales have been made.
I hope that clears things up, please do ask if you are unsure and I will be happy to answer your questions.
And, just because it still happens, it goes without question that any use of my designs or images without purchasing the appropriate license is IP theft.
Violating these terms without amicable resolution or providing the requested fees may result in not only removal of permission to ever use it in the future, but you may also end up on the list of people or companies that I will not allow to use ANY of my work wherever my stock is sold.
Pro tip - if you get caught stealing an IP or for unlicensed use, apologize genuinely. Remove whatever the artist wants removed, and pay what they are asking or negotiate a reasonable payment plan.
The artist gets to set the terms, not the infringing party.
Blocking me from social media accounts, lying about where the stock came from and throwing other innocent parties under the bus, and repeat infringements are all things that would earn you an indefinite ban from my work.
*Lovely scale texture brush from http://www.cassiopeiaart.com
*Update: 3/1/19
My initial plan was to leave out the name of the company that I had the recent run-in with, however, especially since it was my own digital wing stock customer who also happened to be a pro mermaid that notified me of this in the first place there were people who already had connected the dots and so now they’ve already been identified online by others who I’d been talking to for advice.
I didn’t intend to press for secrecy either though, since no attorneys are involved and therefore no NDA has been signed we are all free to express ourselves.
I’ll try my best to make this short as can be.
in 2016, Ryan Newman of Swimtails LLC purchased my Bee Fairy Wings digital stock.
Receipt screen shot shown below.
This past Monday I was informed that the same company had just announced a printed fabric fairy mermaid tail for sale, and they actually used my Bee Fairy wing art on all the fins, and overlayed it on the body of the tail as well! This is commercial use, which I very clearly spell out in my Terms of Use that anyone needs permission for, but Swimtails never asked for it and neglected to credit me, another requirement for this particular digital asset.
Swimtails product with the my unlicensed art
I sent them a C&D email along with an invoice for penalties for unlicensed use equal to the cost of one tail, as well as a message on all their social media channels to make sure they were notified quickly.
They responded first to my Instagram message, even though my message there told them to refer to my email. Below is a screen shot of that, followed by our email responses.
There was no response for a couple days after my last offer of 10% royalties with one non-refundable advance on future payments of $300 up front, which I thought was a fair and maybe even generous offer considering the circumstances that brought it up, and in that time I learned a lot about the company’s past, which included a prior tail design infringement involving another well known company, Finfolk.
There were many complaints from their customers that orders were going unfulfilled since last October and some people had to resort to Paypal claims to get their refunds - after which, they removed the Paypal payment option or so I heard.
All of this made me wary, so I went ahead and sent that one last email rescinding the licensing offer and posted this copyright PSA.
Naturally, friends and strangers knew what I was referring to and shared the post, identifying Swimtails as having illegally released the fairy mermaid tails.
After that I got angry Instagram messages from Swimtails, which still seemed to be trying to convince me that I was losing out on so much money by not allowing them to continue selling tails with my artwork on a wing and a prayer, trusting that eventually they would pay me something for the commercial use with nothing up front.
Below are those complete messages, the first screen shot shows the few that were made early on after emails had been sent. After I put out my post and a few well known mermaids shared it I got the messages starting with “why are you spreading false information”.
It’s never specified who I am talking to on Instagram. After those messages end, I get a very WTF email from Ryan Newman, one of the owners and the person on the Paypal receipt for the digital stock.
First, I LOL’ed at the promise of over $100,000 in royalties this year when they straight up told me they are unwilling to pay an up front fee and too many customers are still waiting on refunds.
Then I ROTFL when I noticed the ‘It’s a Shame’ subject header.
Gaslighting much?
They insisted to me they are an honest company but wouldn’t even pay anything up front AFTER they neglected my license terms the first time and expected me to trust them out of blind faith.
That’s not how it works, and for the record, any IP attorney working on contingency is going to want to get a couple thousand out of any settlement agreement at the very least, and had I attempted to litigate, statutory damages START at $700 and go up to $150,000.
In case you aren’t aware, statutory damages are what an IP holder can be awarded REGARDLESS of whether or not profits are made off the infringement. A judge would only need to determine whether or not the infringement was willful. Willful, meaning the party knew the content did not belong to them and used it anyway.
At this time, I realize nothing will be paid, I’m cutting my losses and moving on.
I initially wasn’t going to offer licensing at all to them, but mermaid friends let me know they had rough times & were trying to make things right, so I took a chance in contacting them directly to enforce my rights.
It’s a great example of why I usually don’t. I don't feel they took me seriously, & hope they respond differently in the future.
Even licensing agreements that don’t start out with infringement usually require an up front non-refundable advance on royalties. I don’t like that they're trying to spin it as if I tried to sneak in an up-front fee, when I requested a reasonable penalty fee from the beginning.
Their apology came with condescension & attempts to guilt me into believing I'm the one missing out by walking away, which cheapens the apology and leaves me feeling even more distrustful of the company. Telling me I'm missing out on $100,000 of royalties in the first year while simultaneously refusing to pay up front and expecting blind trust from the person they infringed is not a good look.
For the record, that digital stock is sold here on my site:
https://fancy-fairy-wings-things.myshopify.com/products/bee-fairy-wings-transparency-stock
Most of the terms are spelled out right in the listing, as well as in the File Info, but here is the actual Terms of Use file: https://drive.google.com/file/d/1isuPtWlV-KWpDiSY2oSFzLk9fcqHvyMk/view?usp=sharing
Every screen shot pertaining to this, including an old screen shot of the previous infringement of a Blue Tang tail design and capture of my original C&D email can be found here: https://drive.google.com/drive/folders/17Xq4Y18NJfnO3-dt4mJChnRqtgAyPLue?usp=sharing
*Edit 3/6/2019
Oh but wait! There’s more! Since my last update, There was an Instagram mer news account, @mermaidelite, that was taking public statements from Swimtails and I, with Swimtails’ statement posted in an Instagram story. I wrote one up but it wasn’t shared as far as I know, though my mother did come down with pneumonia and we had to rush her to the ER and deal with her recovery for about a week now so I may have missed something.
Soon after, I see that Swimtails had posted what appeared to be a public apology. It would have been really cool, however, they stated they were paying my fee, and the fee never showed.
Eventually I got an email from Kristie again, asking for my address so they could send a check. I send them a new invoice with more specific language written up to clarify all the reasons this fee was due for their violations - uniqueness of the stock compared to the rest of the market, the detailed layered Photoshop files included, their use of the word ‘exclusive’ to describe the fabric print design when that was obviously false no matter how it’s spun, the future impact this could possibly have on my brand and business, etc.
Today, I get an email from Kristie telling me they are having a release written up for me to sign after a meeting with their IP attorney, whose full name is still a mystery and who should be emailing me himself instead of letting these people continue to shoot themselves in the foot. I tried to do this without involving attorneys, if I had I would have been asking for thousands rather than a few hundred because attorney fees alone cost much more than what I was asking.
They wouldn’t tell me who their attorney is, beyond calling him Peter, and I know they were aware of the question soon after sending those emails because I had responded to their instagram message letting me know about their emails, to tell them I had responded and the message was marked as ‘seen’.
In short, it’s not worth the trouble anymore for $419 and I do not trust this company in the slightest. It all seems far too dishonest for me. I don’t have time to get jerked around for a few hundred bucks and I’d rather not have the money if it is at my extreme expense. Their apology seemed to be to save face rather than actually be accountable for anything.
This is why I don’t like dealing directly with infringers, they often don’t take the issue seriously and waste my time.
*Update 3/719 I really would love for them to just move on, but there are more comments from Ryan on Facebook posts, claiming I’m not telling the truth or missing information. Well, he was right about just one thing - I did forget something. The one additional screenshot above of Kristie telling me that since it’s a 2 party agreement (it’s not) that they would be sending the ‘release’ form anyway, and my response saying I will never sign anything from this company. Because they can’t be trusted.
But also, I forgot to show you that they also purchased the butterfly stock photo that was used for their butterfly tails, again WITHOUT a commercial license. The company they purchased it from confirmed in an email that they did not purchase a commercial license, required for that type of use.
Here’s a link to the original butterfly photo stock: https://www.123rf.com/photo_16866872_butterfly-species-salamis-temora-.html?fromid=M3l1U3doWFJtd0YwdnRHV3NoMjJwUT09
And here are their butterfly tails: https://www.swimtails.com/product/blue-butterfly-mermaid-tail/
And hey look! There’s the description of them as an EXCLUSIVE design again!
We done here? Because I think this is more than done.
*Oh wait, we’re not - because this company continues to harass anyone online who criticizes their bad decisions or speaks out about never receiving their order, I want to let all the unhappy mermaids know that there might be something we can do - report them to the FTC. https://www.ftccomplaintassistant.gov/GettingStarted?NextQID=203&Url=%23%26panel1-6#crnt
You might also be interested to know that the Better Business Bureau has given them a big fat F!