“Art Theft” and “Plagiarism” are now common ways to say that someone has copied something from your creative work. Many on DeviantArt consider any taking from an artwork to be “art theft” whether or not as a technical, legal matter the theft fits into another category of behavior as well such as copyright infringement. Whatever term is used, it certainly feels like stealing.
“Art Theft” as a crime involves physically taking, stealing, a physical artwork, which could be a canvas or a sculpture or even a hard drive full of digital files. “Theft” describes a criminal act that can result in imprisonment. Technically, it does not involve copying creative expression. When someone copies your art it can feel like a crime. It’s certainly wrong morally and it might be copyright infringement. But accusing someone of a “theft” is a serious accusation that may be too extreme.
“Plagiarism” involves using someone else’s material, usually something written, without credit or citation. It is not a legal term. Plagiarism can occur in fan fiction, poetry, speeches, academic papers and news articles. It is usually used to describe a form of dishonesty but it doesn’t describe something that is necessarily unlawful.
Under the law, taking or using someone else’s creative expression is typically “Copyright Infringement,” which is, truthfully, a lot more complicated than just saying something was “stolen.” Copyright infringement is unlawful but not criminal, unless done on a huge commercial scale (like selling or providing copies to a very large group of people).
There are plenty of things that artists do with work from other artists that are just plain wrong no matter what you call them and whether or not the law thinks they are wrong. At the same time, there are plenty of ways that artists express themselves using what has been made before which aren’t at all wrong.
Take the Eiffel Tower. Under French law it is a protected work of architecture and as such the agency that manages the Tower can stop you from making a “copy.” But if you walk the left bank open air galleries in Paris there would be hundreds of drawings and paintings of it. Those artists are just painting what they see. They certainly don’t think it is an “art theft.” In many of those drawings, the Eiffel Tower will probably look like a copy of another drawing or a tracing of a photograph but the artists would not object to those similarities because there are only so many ways to make a good drawing of the structure.
French law also protects the public light show splashed on the Eiffel Tower at night. Selling a photograph of the Eiffel Tower taken at night with some of those lights shining on it is considered copyright infringement. Almost nobody would believe this and only a copyright nerd would agree with it.
The Eiffel Tower is also a trademark. You can’t make little souvenir versions, or put the image on a cereal box, or film it commercially without paying a fee.
Posting a scan or photo of an 18th century painting on DeviantArt and putting your own name under it as the artist is wrong. But there is no law that says it’s illegal to do that in most countries. Taking an old photograph made in 1890 and colorizing it could be a copyright infringement but almost no one on DeviantArt would think it was wrong.
Of course, there are absolutely clear situations of “Art Theft” and of “Plagiarism.” But language stops working when you don’t know what it means. And we need to keep in mind that “Art Theft” and “Plagiarism” carry strong social stigmas and when used inaccurately can be very hurtful to others.
“Art Theft” is not an abstract or a concrete "wrong" standing on its own. It’s not like walking down the street and watching an assault and having a responsibility to report it. Art Theft depends on the perception and the intention of the person who made the work that is being appropriated, particularly in the modern era of digital distribution. Maybe the intention of placing the work onto a website meant, for the artist, that others could build on it. Certainly images placed in Instagram and videos on YouTube have as their purpose “going viral” meaning that lots of users re-post and re-purpose the content — to the delight of the originator.
It is complicated.
an example of Art Theft
St. Patrick’s Day. Boston. 1990. It’s the middle of the night. The security guard at the Isabella Stewart Gardner Museum (Boston’s art museum) receives a distress signal. Two police officers tell the security guard there is a disturbance outside and are let inside. Only, the two police officers are not police; they’ve come to rob the museum. The burglars end up stealing 13 paintings. Some paintings they take off the wall. Some paintings they cut out of the frame with a knife. In total, the thieves steal approximately $500 million worth of art, including works by Rembrant, Degas and Manet.
an example of Plagiarism
St. Petersburg, Russia. 1976. Future Russian president, Vladimir Putin, is writing a paper to graduate law school. Fast forward to 2005. Two American researches get their hands on Putin’s paper. They find Putin’s paper copied a textbook written by two professors from The University of Pittsburgh. Putin did not put the lifted material in quotes, nor did he provide a citation or footnote. Ted Kennedy, a former distinguished U.S. Senator and the brother of president John F. Kennedy, was also found to have plagiarized while at Harvard.
an example of Copyright Infringement
Dennis Morris is a British rock photographer, famous for shooting the Sex Pistols and Bob Marley. Russell Young was a British-American rock photographer, famous for shooting Bjork and George Michael. Young found one of Morris’ photos of the Sex Pistols online and made a red-tinted version. He used the same photo, created a repeating image with it, threw graffiti on top of that and then added new visual elements. Young did not know Morris took the photo; it had no copyright notice or attribution. Since Young used Morris’ photo without permission, Young was found responsible for engaging in copyright infringement.
an example of Forgery and Counterfeiting
“Eagle Standing on a Pine Tree” perhaps a 1946 ink painting by a great 20th century artist, sold at auction in China for $65.4 million but it hasn’t been picked up by the new owner and lies in a warehouse while a debate rages over whether it is a fake — a forgery or a counterfeit. It is criminally fraudulent behavior to make a forgery or a counterfeit because the work is being represented as authentic when it is not. But as a contrast, many top art collectors hire artists to make perfect “forgeries” so the original can be protected from thieves in vaults while their guests look at the perfectly fake copy hanging in the collector’s home. Because the collector knows it’s a fake, it wasn’t a crime to make it. Some artist make a good living openly creating new paintings in the exact same style and of the exact same subjects as a grand master whose works are no longer protected by copyright; and as long as they don’t try to sell them as “originals” its perfectly legal. And many museum directors have admitted that their galleries may be displaying forgeries and fakes passed off as real over many years, sometimes over centuries.