The (Red)Bubble of Legal Protections for Digital Art Marketplaces

March 13, 2024

By Hannah Gadway

Introduction: Protecting Art Online

As the Internet has become a substantial channel for consumption and dissemination of visual content as well as revenue for visual artists, digital art theft has grown. A simple screenshot of an unwatermarked image can allow infringers to reproduce the art on other merchandize and websites, convert it into NFTs (non-fungible tokens), or utilize a variety of third-party websites to print and sell the art on demand. The question of how to protect artists’ rights in this burgeoning space becomes more urgent every day.

The legal history of Redbubble, an Australian digital marketplace, is instructive and may demonstrate how both copyright holders and digital companies can protect themselves and visual artists’ rights in the growing world of the Internet.

Redbubble is an online print-on-demand marketplace where anybody can upload designs to be emblazoned on a plethora of items, including clothing, stickers, mugs, and more.^[1] The site’s business model is unique because it realizes the production and shipping of its goods through third parties. The company’s services are limited to the marketing of users’ items and the management of its digital platform. In theory, Redbubble helps artists by making it effortless to produce goods with their artwork. The service has proven to be incredibly popular, especially amongst Gen Z consumers, and the site made nearly $300 million in marketplace revenue in 2023.^[2]

The convenience of Redbubble’s services helps artists, but also generates a key problem: it’s easy to upload stolen art. According to the site’s User Agreement: “​​Redbubble respects the intellectual property rights of others, and … require[s] that all Users do the same.”^[3] Despite these stipulations, repeat instances of copyright infringement often fall through the cracks. Understanding how Redbubble still legally functions despite the copyright violations of its users requires an understanding of copyright law’s place on the Internet, as well as two key cases: Atari Interactive, Inc., v. Redbubble, Inc. (2020) and Y.Y.G.M. SA, DBA Brandy Melville, a Swiss corporation v. Redbubble, Inc. (2023). Reviewing the legal battles of a site like Redbubble reveals how artists may be able to protect themselves and their artwork from digital art theft, as well as the current pitfalls of digital copyright law.

Digital Marketplaces: A Dive into Caselaw

Redbubble is aware of the sticky situation that arises from digital art theft and has an entire page on its site dedicated to explaining copyright law. As the page explains, “While we can’t defend you in court, we know that art and IP ownership can be murky territory; the least we can do is arm you with the right kind of knowledge to get you started.”^[4]

The site’s process mirrors the guidelines set up in The Digital Millennium Copyright Act (DMCA). In 1998, The DMCA amended American copyright law and established the “notice-and-takedown” system, which gives copyright holders the right to issue takedown notices to websites.^[5] If the alleged copyright infringer denies these accusations, they may issue counterclaims. This system puts the first round of responsibility on the copyright holders, asking them to directly request enforcement of copyright law on the individual sites where they notice infringement. Redbubble provides a simple Notice and Takedown Report on its site^[6] and requests that artists fill it out if they believe their rights have been violated.

While this takedown process provides a first line of defense against copyright infringement, it requires both constant vigilance on the part of the copyright holder and a suitable way to deplatform offenders. Complications surrounding this process — including a lack of awareness about the DMCA and an inefficient way to stop repeat offenders — have led to concerns from artists and companies about copyright and trademark infringement on Redbubble. Yet, legal claims against Redbubble have been ending favorably for the company.

For example, in Atari Interactive, Inc., v. Redbubble, Inc. (2020), the video game company Atari noticed nearly 100 pieces on Redbubble’s site that used copyright-protected artwork and trademarks from its games. Atari sued Redbubble in the U.S. District Court for the Northern District of California, arguing that Redbubble was liable for vicarious and contributory infringement based on it being “the primary moving force behind the sales” on its website.^[7] Proving vicarious infringement requires that a defendant can supervise an infringing act and a financial interest in infringement.^[8] Additionally, contributory infringement must prove that the defendant is aware of someone’s infringement and either contributes to or encourages it. ^[9]

The key hiccup in Atari’s argument was that Redbubble did not upload or produce the various infringing materials. Although Redbubble technically has some involvement in the production by creating stock images for users bearing their desired designs, the Court found that this was not substantial enough to create contributory and vicarious infringement. Additionally, the Court noted that Atari did not file a DMCA takedown notice with RedBubble until after it sued the company. Once Atari eventually filed a notice, Redbubble immediately took down over two thousand Atari-related listings, proving that it was swift in reducing infringement on its marketplace.

Redbubble’s success in the courtroom was further cemented in Y.Y.G.M. SA, DBA Brandy Melville, a Swiss corporation v. Redbubble, Inc. (2023). This case involved the popular clothing line Brandy Melville, which first noticed a product on Redbubble displaying its trademarked design in 2018. Brandy Melville filed a takedown request and Redbubble removed the product, but the company still pursued legal action against the site a year later.

As in the Atari case, Brandy Melville sued Redbubble in the United States District Court for the Central District of California for contributory infringement of the company’s trademark, specifically the Brandy Melville Heart Mark and LA Lightning Mark. The company was at first unsuccessful, learning, that Redbubble does not qualify for contributory infringement simply for hosting illegal goods. Brandy Melville continued to pursue the suit in the U.S. Court of Appeals for the Ninth Circuit, claiming that Redbubble is willfully ignorant of infringement and has a duty to actively search for infringing material on its marketplace.

The court again found that Redbubble could not be held responsible for those breaking the law on its platform, as the site conformed to the stipulations of the DMCA. Additionally, the Court of Appeals decided that “There is no inherent duty to look for infringement by others on one’s property.”^[10] In other words, as long as a site complies with the DMCA and takes down infringing items once aware of their existence, they are not required to investigate further. Redbubble is simply a marketplace that provides a platform for people to choose what they sell, and their infringing decisions are not Redbubble’s responsibility.

Implications: A “Bubble” of Protection

These two cases show how digital marketplaces have generated a bubble of legal protections. As long as a site does not actively engage in the production process of an infringing piece and maintains a speedy takedown process, it is largely safe from lawsuits.

Although this protection is beneficial for sites, it also makes taking legal action more complicated for artists who have had their work infringed. Artists, whether small independent individuals or employees within larger companies, must sue infringers directly instead of the sites that sell infringing work. Copyright holders will have to identify and pursue specific users, a process that is far from simple since infringers may hide behind fake names and anonymized email addresses.

This burden on artists reflects a larger pitfall of the DMCA, which puts much of the responsibility for pursuing copyright claims on individuals. For intellectual property guarded by large companies, this is not a pressing issue, as resources can be dedicated to scanning sites and reporting misuse. But, for smaller artists who do not have such resources, controlling the tide of infringement may be an isolating and time-consuming task that ultimately may prove more painful than pursuing action.

Conclusion

The degree to which websites may choose to protect their artists beyond the rules of the DMCA is, therefore, an individual decision. Redbubble is aware of the stress that this situation puts on individual artists and has recently instituted measures to assist its artists (perhaps in response to the two major lawsuits).

In an interview with the Center for Art Law, the general counsel of Redbubble and its parent company Articore, Jimmy Toy, commented on the site’s efforts to help artists avoid infringement:

“We collaborate with rights holders to implement proactive measures that go beyond notice and takedown under the DMCA. These measures are intended to take some of the burden off rights holders, from large global brands to small independent artists. We understand that the takedown process can feel like whack-a-mole and smaller artists especially may not have the time and resources to continuously monitor the internet for infringement of their rights. Our proactive measures program includes manual screenings by our content moderation team, as well as automated measures, like image matching, text-in-image matching, keyword matching, and machine learning anti-fraud tools that look for repeat infringers with networks of bot accounts. We give artists as much help as we can.”

These services, which automate the process of finding infringing material, are helpful, but they still require that artists stay aware and constantly upload information about their new work. It still may prove that those who have more resources to dedicate to patrolling sites may be able to utilize DMCA protections and Redbubble’s service to the greatest extent.

This caveat within Redbubble’s protections represents a larger problem with the state of copyright law on the Internet: independent artists must be ever-vigilant about the various sites where infringing content may appear and register themselves across them. While the DMCA provides remedies for artists who notice their work popping up, this system may reward infringers who know how to avoid image and keyword matching. Overall, small artists must think ahead about protecting any copyrighted work and be wary of sharing their art without watermarks or other protections online.

Suggested Readings

• Eric Goldman, “Redbubble Gets Another Favorable Ruling–YZ Productions vV. Redbubble.” Technology and Marketing Law Blog (2021), https://blog.ericgoldman.org/archives/2021/06/redbubble-gets-another-favorable-ruling-yz-productions-v-redbubble.htm.
• Adam Philipp, “Ninth Circuit: Specific Knowledge Needed to Prove Contributory Trademark Infringement,” AeonLaw (2023), https://aeonlaw.com/ninth-circuit-specific-knowledge-needed-to-prove-contributory-trademark-infringement/.
• Morgan Smith, “Pun Intended, but Not Infringing: 9th Circuit Finds LETTUCE TURNIP THE BEET Aesthetically Functional,” Finnegan.com (2021), https://www.finnegan.com/en/insights/blogs/incontestable/pun-intended-but-not-infringing-9th-circuit-finds-lettuce-turnip-the-beet-aesthetically-functional.html.
• Samantha Cole, “Please Stop Ripping Off This Artist’s Sloth Drawing,” Vice (2017), https://www.vice.com/en/article/8qmv4a/please-stop-ripping-off-this-artists-sloth-drawing.

About the Author

Hannah Gadway (Center for Art Law Intern Spring 2024) is a junior at Harvard College studying History and Literature. Hannah has helped generate interest in art on Harvard’s campus by working as a Student Guide at the Harvard Art Museums and the Co-President of the Harvard Undergraduate Art History Society. Outside of art-related ventures, Hannah is the Co-President of the Harvard Undergraduate Law Review and an Arts Board Executive for The Harvard Crimson.

Select Sources:

1. “About: Selling,” Redbubble.com, available at https://www.redbubble.com/about/selling. ↑
2. “FY23 Annual Report,” Articore.com (30 June, 2023), pg. 6, available at https://www.articore.com/FormBuilder/_Resource/_module/VFV_6YfHZ0qKveaD4XGZZA/files/presentations/FY23_Annual_Report.pdf. ↑
3. “User Agreement,” Redbubble.com (20 April 2023), available at https://www.Redbubble.com/agreement. ↑
4. “What can I do to ensure that the products I sell on Redbubble don’t infringe someone else’s copyright?” Redbubble.com (23 March 2022), available at https://help.Redbubble.com/hc/en-us/articles/360051806652-What-can-I-do-to-ensure-that-the-products-I-sell-on-Redbubble-don-t-infringe-someone-else-s-copyright. ↑
5. “The Digital Millennium Copyright Act,” The U.S. Copyright Office, available at https://www.copyright.gov/dmca/. ↑
6. “Submit a request,” Redbubble.com, available at https://help.Redbubble.com/hc/en-us/requests/new?ticket_form_id=360000954531. ↑
7. See Atari Interactive, Inc. v. Redbubble, Inc., No. 18-cv-03451-JST (9th Cir. 2021). ↑
8. Id. ↑
9. Id. ↑
10. Y.Y.G.M. SA, DBA Brandy Melville, a Swiss corporation v. Redbubble, Inc., No. 2:19-cv-04618- RGK-JPR (9th Cir. 2023). ↑