This article was published on IP Osgoode’s IPilogue blog on Mar 1 2022 here. The version below has some minor formatting edits for clarity.

Image by Tim Mossholder (Unsplash)

From the limited scope of my research as a 1L student, as well as my personal interest, I have noticed a lack of creative voices within the legal realms that apply to them. On the one hand, social media has enabled global sharing of news and creative media. However, it also brings new dimensions to copyright and trademark issues. This observation, coupled with seeing multiple artists be exploited by Instagram users and large companies, motivated me to reach out to several creatives online and bring their voices to the IPilogue.

This article features three artists I met over the course of my research:

• Kaitlin Chan (they/she), an autobiographical cartoonist from Hong Kong;

• Tabathia Smith (she/her), a laser-cutting small business owner; and

• Michelle Rial (she/her), a Venezuelan-Spanish-American author and illustrator.

Their extended biographies are included at the end of this article. I am extremely grateful for their time and energy in sharing their experiences.

This article was prompted in part by Tabathia, also known as The Adorned Fox (“TAF”), whose post on trademarking her brand spurred me to reach out and learn more about her experience. This interview has been edited for brevity and clarity; all emphases are mine.

Emily (E): What prompted you to protect TAF and trademark your brand?

Tabathia (T): “A company private messaged me, pretty much accusing me of trademark infringement. After doing my research on their company and trademark, it was very clear this business was trying to intimidate me into changing my business name in hopes I would just do what they say. It was a scary moment for me as a small business, as I couldn’t imagine trying to rebrand. That’s when I knew I had to protect TAF.”

E: What were you looking for in your trademark lawyer? Do you have any comments on accessing legal services for yourself?

T: “I was very fortunate in having a father-in-law who knows a lot of lawyers. He reached out to several and they got me in contact with my trademark lawyer.”

This was interesting to me as accessing legal services appears grounded in the power dynamic between independent artists and larger companies. According to the World Justice Project, 52% of respondents experienced a legal problem in the past two years. Of those, 32% were able to access help. These folks primarily relied on lawyers (44%), followed closely by friends or family members (42%). This suggests that having a network of legally literate connections (or those who are connected to lawyers) is a significant asset in accessing justice on par with the utility of a lawyer itself. Tabathia also touched upon the issue of disproportionate access to justice for small businesses.

Based on these insights, I was curious about what artists who have gone through some form of legal process would say to their peers.

E: What advice would you give to fellow artists and makers on social media on sharing their work? Is there anything you would have liked to know before or during the legal process that you know now?

T: “If I knew [a trademark dispute] would have ever been a possibility, I would have trademarked my business name immediately all these years ago when I started. I would tell other small businesses that if you are serious about your brand and business, definitely look into protecting what’s yours. Also, it’s important to have [a] LLC [limited liability company] to start the process of a trademark. I didn’t realize that either until after talking with my lawyer.”

Kaitlin (K): “My advice would be to not undervalue your work, no matter its scale or the size of your platform. It’s easy as an emerging artist on social media to feel like you have to allow any kind of commenting, sharing, and reposting because you are a beginner; but you always have room to say no to having your work used or shared in ways that don’t align with you. Your instincts are usually right about this.“

Michelle (M): “There are ways to get your [infringed] work taken down by filling out a copyright report. No one is allowed to use or repost what you make without your permission. If something feels exploitative, it probably is and it’s within your right to get it taken down. Accounts often take a long time to respond if you ask them by sending a message. They will often be upset as well. It’s helpful to remember that they didn’t take the time to make anything, and they are taking your time, work, and energy, and reaping the benefit. They have no right to be upset.”

Each artist emphasized the importance of individual instincts and understanding your rights. Although these artists were not subject to the Canadian legal system, the nature of the internet surpasses national borders, as do the practices and cultures embedded within them.

E: What would you like to see happen in terms of the culture of social media artists and their followers? What is your stance on people or large companies reposting your work on their accounts or other social media platforms?

T: “Honestly, my account came up in a time when artists and small businesses loved having features on social media platforms. It definitely got my accounts where they are today. Most were very nice to work with and always gave credit where it was due, which in turn boosted your pages. Social media now has changed so much; it’s mainly up to you to create good content or relatable content for it to “go viral”. It is a much different “concoction” than several years ago.”

K: “What I would like to see is institutions and companies actively reaching out to people to clarify consent before reposting artists’ work[s] in their feed, especially seeing as corporate representatives may not even know if the artist wants to be associated with their brand or company. There is an assumption that […] any attention is good attention, and I do not think this is always true. Sometimes, exposing a vulnerable creator to an audience who is not familiar with their broader portfolio and life context can be triggering and frustrating, especially if their work is about their experiences. Not asking someone if you can share their comic about depression before reposting it to your tens or hundreds of thousands of followers is irresponsible and can read as disrespectful of the time the illustrator put into the original artwork.”

E: What has your experience been like collaborating with other makers? What about with larger brands (i.e., did you feel properly equipped to negotiate terms or conduct business)? What were some positive or negative experiences you’ve had?

K: “I have had difficulty understanding longer contracts, especially when I was first starting out. It was advice from other artists that lifted me up and taught me to look out for usage clauses—the ways in which my work could potentially be changed or used in the future. With basic negotiating skills and an awareness of how my work would be presented and utilized, I felt more empowered to ask for my true worth instead of just anxiously accepting whatever terms or fees I am initially presented with.”

M: “It’s often a negative experience because they never ask, and the culture is to use whatever you want. If it’s an obvious thing where they’re “crediting” you but hiding your name behind their own promo, I go straight to copyright removal because I don’t owe them anything; they’ve already used my work for free and benefitted. It can be beneficial to both parties if they are a large account that’s actually making an effort to showcase you as well as your work, but I rarely see that. Social media “gurus” will teach people how to exploit other people’s work for account growth so everyone just assumes they can use anything. I often do not feel equipped to negotiate because brands are used to using anything they find for free.”

It was especially impactful when Michelle noted that she is, “super negative on this at the moment, just because [she has] spent so much time trying to advocate for [her]self and it takes away the time [she] could be making things.”

I can attest to this. Following Michelle on LinkedIn, I see how often LinkedIn users repost her graphics to boost their own posts or announcements. I can only imagine the time it takes to catch these and comment to claim ownership and promote the book in which these graphics are published.

Through this limited sample of artists, I hope to encourage and remind legal professionals, marketers, and the broader public to consider their practices and use these reflections to inform decisions. Given the privileged position these professions hold, I believe more can be done to make the process of sharing art more equitable and mutually beneficial.

One form this could take is obtaining consent and structuring captions in a way that the artist prefers. For instance, should the first words in the caption state the authors name and account? How can businesses utilize the comments section and ability to pin individual comments to amplify the original creators?

Centering these experiences in one’s practice, no matter what jurisdiction or field, will be a positive step towards supporting all forms of creative development and the livelihoods of makers.

If you are an artist or small business owner interested in learning more about your intellectual property rights, the IP Innovation Clinic can help you obtain the information you need to get started. Learn more about engaging the Clinic’s services here.

About the Artists:

Kaitlin Chan (they/she) is an autobiographical cartoonist and gallery worker from Hong Kong. Over 17.3k followers on Instagram engage with their stories, which have appeared in The New Yorker online (where I originally saw their work!), The Margins, Popula, ArtAsiaPacific, The Offing, AWRY, and the Hong Kong Visual Arts Yearbook. In 2018, they co-founded Queer Reads Library, a mobile library that centres queer Asian perspectives by curating publications, organizing reading corners, and hosting public programs. They are also an avid zine contributor, telling stories about quiet moments, friendship, and reflections about their life: everything from leaving religion and finding emo music, to friend breakups, and the banal beauty of city life.

Tabathia Smith (she/her) is the maker behind The Adorned Fox™, a hand-lettering Instagram account turned laser-cut, engraving, and painting business with over 66.5k followers. I originally followed her when she was still primarily a hand-lettering account, back in the days of one of my own (failed) attempts to participate in the “artstagram” community. Tabathia is a dynamic artist who strives to learn and grow in new ways, and is always looking to improve her craft as a small business owner.

Michelle Rial (she/her) is the author and illustrator of Am I Overthinking This? Over-Answering Life’s Questions in 101 Charts (2019) and its recent successor, Maybe This Will Help: How to Feel Better When Things Stay the Same (2021). She’s a Venezuelan-Spanish-American who calls the Bay Area home. She has amassed over 99.2k followers on Instagram with her candid graphics and charts of whimsical, everyday dilemmas of adulthood, including living with chronic illness.