How Small Retailers Can Efficiently Enforce IP Rights: An Interview with JL Cook of SnakeArts

“The true crime in ecommerce fraud is that creators will stop creating.” That grim assessment has driven Jennifer L. Cook of SnakeArts to fight like heck against rampant infringements and counterfeits globally. Her ongoing class action lawsuit against Meta Platforms claims their subsidiary Facebook knowingly permits copyright infringement via advertisements featuring stolen product images from artists. It seems to be in Meta’s best interest to do so: FB generates the bulk of its billions of dollars in annual revenue from advertisements, without regard to the legitimacy of content.

“I am hopeful in the long term,” Cook contends, “but I fear conditions are getting worse before they’ll get better. At this point, ecommerce and social media platforms have little incentive to enforce intellectual property (IP) rights of small independent artists and designers – who rightfully fear they’ll never realize the financial fruits of their labor.”

Respect for IP rights has been declining globally, even in regions like the United States and Europe, where copyright protection was once considered sacred. Not surprisingly, the expectation of online shopping, near-universal accessibility of digital content, print-on-demand merchandise, Artificial Intelligence (AI) generators and other emerging technologies have contributed to the rapid uptick in copycats, and relative downturn in enforcement. Recently, debate has been raging in Japan where their tech minister proclaimed AI training data as “fair game.”

Additionally, broad consumer sentiment has evolved to accept and even celebrate counterfeit purchases, particularly among young shoppers in recent years. The EU Intellectual Property Office surveyed 25,824 people aged 15 and above in 2023: One in three Europeans (31%) finds it acceptable to buy counterfeit products if the price of the genuine product is too high. Among younger consumers aged 15-24, this figure jumps to 50%, up from 14% in 2019.

“Consumers are witnessing fraud at every step of the retail experience,” Cook explains. “From the initial promotion on social media, to product reviews, to counterfeit products… even when ‘brand consultants’ offer to clear the legitimate retailers’ reputation, and they often turn out to be scammers themselves.

“It’s a very sophisticated business model, where the scale of the scams seems unprecedented,” Cook continued. “Organized crime specifically targets thousands of artists and small businesses in mass markets because they’re well aware of their limitations in knowledge and resources. There’s no impetus to stop it, so predators are expanding exponentially.

“I was shopping for tablecloths the other day and browsed through literally 40 to 50 fake sites. Talk about anxiety-inducing. I specifically Googled independent shops and took the time to have real phone conversations with a few owners before making the purchase.”

Let’s face it: Most consumers won’t go to those lengths to purchase legitimate products. So, what, then, is the end game? Is our “counterfeit culture” ultimately economically sustainable?

One scenario, according to Cook, is that ecommerce collapses under the weight of consumer distrust. Platforms will fail.

“In order to break the cycle,” Cook predicts, “consumers need to be exposed to authentic product images. Since the marketplaces are not stopping the fraud, they need to be compelled to screen their advertisers and sellers for legitimacy.”

Career Coup Leads to Crash Enforcement Course

After graduating from the University of the Arts in Philadelphia, Cook spent more than 25 years in commercial art. She sculpted prototypes for the toy and giftware industries, movie props, jewelry models, architectural elements and historical building restoration. Most were “works for hire” for the likes of Disney, Lucas Films, Crayola, Warner Brothers, Marvel and many other creative titans.

“Early in my career, I understood that those creations did not actually belong to me,” Cook said. “That was the deal as a specialized laborer: I couldn’t claim any intellectual property rights whatsoever.”

Cook’s big break materialized after the 2014 release of “A Million Ways to Die in the West,” a western comedy directed by Seth MacFarlane. The audience got a good look at Cook’s rattlesnake door handle as it sprang to life near the end of the film.

That’s when clients (like the Palais de la Découverte, the Museum of Science and Natural History in Paris) began to knock on her door. Cook went on to create works for designers and clients like the Chiricahua Desert Museum in Rodeo, New Mexico.

“My original rattlesnake door handles took about a year to sculpt to my standards,” Cook said. “Then it took another year for the foundry to accurately reproduce that first pair in bronze.”

Soon after that, scammers flooded the global market with low-quality imitations marketed on social media and sold using her photos.

Thieves continue to steal Cook’s stunning product images, and re-post them in bait-and-switch ads on ecommerce and social media platforms. They funnel funds from unsuspecting consumers to their own dark accounts. If the fraudsters fulfill the order at all, it’s with a cheap knock-off.

Cook admitted that her learning curve was steep during those first few months of dealing with the theft of her intellectual property, as she frantically tried to maintain her professional identity and reputation. In some ways, her reaction paralleled the five stages of grief:

1. Denial: This can’t be happening; I can’t believe some stranger would claim my work as his own.
2. Anger: How dare they violate me and my work.
3. Bargaining: Maybe if I suspend all online sales, the scammers will stop scamming.
4. Depression: My efforts are useless; the whack-a-mole effect is real.
5. Acceptance: At the moment, this fraud is a fact of life. (But it will NOT be like this forever.)

“When artists lose direct attribution of their work, it’s incredibly damaging to their career – and maybe even fatal,” Cook explained. “With so many counterfeits confusing the consumer, it takes a lot more effort for prospective clients to find the genuine creator. And we’ll never be able to calculate the loss of revenue from prospects who simply gave up searching.

“Angry people seem to find me more easily,” Cook continued. “They’ll always believe that I scammed them, no matter how logical my argument. I’ve come to accept the fact that I’ll never be able to convince some consumers that they’re not the only victims of counterfeit crimes.”

What’s Next?

Retailer victims have been getting more vocal via groups like Facebook Ad Scambusters, ETSY P4P INFRINGERS, Scam Alert, and Global Scam Fighters. Additionally, ScamAdviser and Fake Website Buster are leading a growing number of website review pages to determine the legitimacy of ecommerce platforms. Many active members are creative types themselves: They witness the ebbs and flows of ecommerce, as they initially benefited from the bounty of a global consumer base. But as scammers gained easy access to statistics around best-selling items, artists found themselves suffering from avant-garde data-driven fraud.

Emerging technologies have stepped in to help take advantage of big data, too. Scam Intelligence Algorithms have been designed to crawl across the web to detect suspicious product images. In addition to the visual component, the algorithms employ machine learning to collect dozens of pertinent threat indicators like domain name registration dates, SSL (Secure Sockets Layer) certificate details, and duplicate content. (Scammers tend to be lazy and may not bother to change the “About us” template provided by popular ecommerce platforms). Perhaps most importantly, the spiders capture time-stamped screenshots of the infringing listings.

That meta data can help anticipate the next iteration of scammers, which facilitates more efficient detection and subsequent DMCA (Digital Millennium Copyright Act) takedown requests – to minimize consumer exposure to fraudulent ads. The authorities can also “follow the money” with more confidence. Think of all that evidentiary data as a formidable forerunner to traditional counterfeit stings – where law enforcement reacts to the criminals, raiding warehouses only after the fake products have been manufactured.

“Proactively litigating against infringements is the only impetus for ecommerce and social media platforms to change,” Cook went on. “Unfortunately, legislation is painfully slow; it’s always going to play catch-up in practical terms.” (Cook referenced two recent U.S. Supreme Court cases in point: Warhol v. Goldsmith and Jack Daniel’s Properties v. VIP Products.)

“The platforms are clearly willing to partner with large luxury brands, but don’t feel the same responsibility for individuals or small brands,” Cook observed. “Not surprisingly, the bigger players feel the need to keep their reputations intact at almost any cost.”

“No one creates art with the intention of defending it for the rest of their lives,” Cook concluded. “The last thing I want to do with my time is chase scammers. The fight against Facebook isn’t just about me. It’s for everyone who wants to create and share something new in the world.”