For most fledgling artists, getting their work into a national retail outlet like Walmart would be a major boost for their career. Unless, of course, they didn’t know it was happening. Jeresneyka Rose, a Colorado Springs artist, found out her artwork was being sold on canvas prints for $14.98 at Walmart when she was cleaning out her Instagram message requests.
“I was going through my [message] requests and people, like three people in a row, requested me around the same time, tagging me in a congratulations thing on a collaboration,” said Rose. “I was like, ‘What?’ I looked at it and they were like, ‘I got my Art by Rizzo at Walmart.’ I responded, ‘Thank you so much for tagging me and your support, but they stole my work. I didn’t collaborate with them.’”
Rose’s artwork, a digital portrait of Nipsey Hussle, a hip-hop artist and anti-gun violence activist who was fatally shot on March 31, 2019, was sold in Walmarts in multiple states. She found out because the watermark she placed on the piece was also her Instagram handle, @artbyrizzo.
“I screen-recorded and saved all the pictures everyone sent me,” said Rose. “One person sent me their receipt showing the barcode, the SKU number, all the proof that Walmart is selling my work. Plus, my watermark is still on the art. They edited the picture and removed my signature and changed the background to yellow, but my watermark was still in the hair. I guess they couldn’t get that off, and that’s what saved me.”
Dave Ratner, a lawyer with Creative Law Network and a member of the pro-bono legal network Colorado Attorneys for the Arts, sees this kind of thing a lot.
“It’s very prevalent,” he said. “I think a lot of that has changed because of digital media. Before the internet there was no ‘right-click, save as.’ You couldn’t just find someone’s image and go and take it, you would have to go somewhere and get a physical print. As we are increasingly online and our materials are increasingly online and business is increasingly done online, because the internet provides quite a bit of anonymity and protection for infringers, it has become more prevalent.”
Based on the specific watermark on the Walmart print, Rose was able to track the theft back to her Twitter account, also @artbyrizzo. “I drew the picture, and it was phenomenal, one of the best portraits I’ve ever drawn,” said Rose. “I knew it would kind of go crazy on the internet, but I didn’t want to like, sell it, unless I’m donating it to a nonprofit [Hussle] may have had or to his family. I couldn’t find a legitimate source to donate anything to, so I thought it would be a genius idea — now, not so genius — to give it away for free.
“What happened was, I created a tab on my website for a digital download. As long as you went on my website [artbyrizzo.com] and put in your email address, you could download the high-quality, digital copy of my work, with my signature on it, for free. I also understood instead of downloading it some people would probably just screenshot it, which is technology. So, on Instagram I put a specific watermark. On Twitter I put a specific watermark, and then on my website I put a specific watermark. It was actually on accident, but the fact that I did that tells me that Walmart — or whoever — stole it from my Twitter, because when I tweeted it and it went viral that ‘Hey I’m giving away these free downloads’ I used an obnoxious — it had five ‘@artbyrizzo’s on it, actually, they edited all of them out but couldn’t get the one I put in the hair.”
Had it not been for her watermark, Rose might have never discovered the theft.
“It’s kind of surprising whoever infringed their work with Walmart left the instagram handle on the artwork,” said Ratner. “That’s sloppy infringement.”
Ratner mostly sees this kind of infringement with websites that allow users to set up individual online stores, not a major retailer like Walmart.
“Walmart is not a very common infringer,” he said, “but we see it on, for example on Etsy, or Redbubble or eBay all the time. Anyone can sell their wares through these online portals that Walmart would not. I see instances of infringement on those websites far more frequently.”
For Rose, whose art makes up a significant portion of her income, the theft is a serious problem.
“I’m a full-time artist,” she said. “I’ve been a full-time artist for going on two, three years. It’s a huge impact on my business. With the art market and the pandemic and just life, my income has been pretty inconsistent. I’ve done things like DoorDash or Uber or whatever other little side-hustles I can get to make money to survive. It’s pretty detrimental. In a perfect world, if they would have licensed my work to sell, I’d be getting residuals or if they had paid me a lump sum I’d be getting money where I could survive. A lot of my work is community work, because that’s what fuels me.”
Walmart’s business model has long relied on being able to undercut competitors by purchasing products in bulk, which is devastating to independent artists.
“When we look at places like Walmart or Wish, they’re billion-dollar corporations,” said Rose. “They have the means, funds and resources to mass-produce things on a level that costs them, literally, pennies on the dollar. $14.98 for me is an insult, but $14.98 to them, since it only took them 75 cents to produce it, is a huge win. For me, I’m hand-drawing things. Even if it’s digitally, I’m using my time — hours and hours — to draw things, and then I use local shops to get them printed out. That costs the same as if you want to go print a family photo. Whatever the full price is, that’s what I pay. I don’t get a special bulk discount or warehouse discount to produce my work to then sell to people.›“Of course, it’s going to cost more for me, but it’s coming from the original source and I’m paying significantly more. I probably pay what [Walmart] is selling it for to produce something, so if it costs me four hours of time to draw something, and then I have to pay $10 to get it printed and I’m selling it for $20, yea I just made $10, but I also spent four hours, go to the print shop, pick it up, come home, package it, buy supplies to package it, drive to USPS, drop it off, pay the shipping, come back home. I’m spending so much more money than Walmart.”
For artists like Rose, the only recourse is the legal system, which can be expensive and time-consuming for working artists.
“The average artist in this day and age does not have a lot of funds to engage an attorney and there is a real disconnect between the cost of hiring an attorney and what the average artist gets paid,” said Ratner.
However, there are several avenues artists can pursue once their copyright has been infringed upon.
“Using someone’s artwork without permission is copyright infringement, so the remedies for copyright infringement are through the courts,” said Ratner. “There are certainly severe penalties for copyright infringement if you do go the route of filing a federal copyright infringement lawsuit, but if we’re not interested in the lawsuit, then there’s a long list of possible remedies, including payment to the copyright owner.
“That payment can be a payment of profits received, it can be a payment of damages or what a license fee should have been. It can include the sending of all the current products — if there are a bunch of prints, for example — sending the copyright owner all of those products. It also almost always includes a cease and desist, that the infringer is going to cease and desist the infringement. There may be a public apology. Sometimes we try to turn it into a business opportunity. The artist says, ‘Instead of making this all nasty, you liked my artwork, Mr. Infringer, if you want to do it, let’s do business together. You’ll pay me back and you’ll pay me in the future.’ There’s a variety of ways it can go.”
To Rose, the theft of her art is about more than just money.
“Yes, I want to be financially comfortable enough to not figure out what I’m going to eat that day, but at the same time I’m not so money hungry that everything I do is about a dollar,” she said. “I do tons of things for free, things like Pencils in the Park and other projects I’ve consulted on, and just given my time and my artistic intellectual property for free, by choice. I feel like that choice was taken from me, which stinks in this situation.
“On top of that, I know for a fact they’re making money on it because 10 different people at this point have told me they bought one. That’s at least 10 people I know of who tagged me on social media because they were excited to have a piece of my work. That was in Georgia, Florida and Alabama. Three different states. Three different Walmarts.
“Imagine how many other Walmarts I don’t know are selling it, and how many people I don’t know have bought it and never said anything, or bought it for a friend. I drew this two years ago. I don’t know how much money they could have made by now. It’s a huge deal to me.”
Rose has reached out to Colorado Attorneys for the Arts. Walmart did not respond to Southeast Express’s request for comment.