Grossman LLP | Artist Alleges Wholesaler Copied Her Work: A Look at Copyright Infringement in the World of the Independent Artist
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  • Artist Alleges Wholesaler Copied Her Work: A Look at Copyright Infringement in the World of the Independent Artist
    10/23/2013
    On October 16, California-based artist and illustrator Lisa Congdon posted an entry on her blog entitled “My Art Was Stolen For Profit (and How You Can Help).”  In it, she laid out her claim that wholesale company Cody Foster & Co., which sells ornaments and other home-décor items to retailers around the world, had copied some of her artwork to make a set of holiday ornaments, and then marketed the ornaments for sale—without permission by or compensation to Congdon.  This matter highlights critical issues for copyright holders, would-be copyright infringers, and merchants who sell potentially infringing works.

    Congdon says she is not the only artist whose works have been copied unlawfully by Cody Foster as part of its longtime pattern of swiping art by independent artists.  Congdon points her readers to this acquaintance’s online repository of photographs purportedly comparing Cody Foster’s goods with those by several independent artists.  Online news source Jezebel picked up the story, and it began making the rounds on several media sites, including Twitter.  In response, major home décor retailer West Elm announced on its blog that, “[a]s fervent supporters of handcraft, authenticity and the art of collaboration,” West Elm found Congdon’s allegations “upsetting”; therefore, when the company realized that it had itself “purchased a selection of ornaments from Cody Foster,” the West Elm team acted quickly to pull all Cody Foster product from its website and stores.  Retailer Fab.com followed suit, noting that “we take the rights of designers very seriously” and explaining that, while it had placed an order from Cody Foster “many months ago” for a selection of ornaments and decorations to sell, it had removed the items that were already live on the site, and pulled all Cody Foster products from its upcoming holiday décor shop.

    As of this writing, Cody Foster & Co. had yet to comment, and the Consumerist reports that the company’s Twitter feed and blog had been taken down.  Its website’s “About Us” page contains a narrative written by the company’s founder, who says he “learned craft-making from [his] grandmother” and his designs “draw inspiration from many sources but especially from offbeat vintage pieces and unconventional antiques.”

    Congdon has stated on her blog that she plans to pursue legal action against Cody Foster & Co.  To establish copyright infringement, she will need to show ownership of a valid copyright, and copying of constituent elements of the work that are original without her authorization. A plaintiff can establish copying by showing (1) that the defendant had access to the plaintiff’s work, and (2) that the two works are substantially similar.  As this blog has discussed before, the substantial-similarity analysis generally involves a determination of which expressive elements of the plaintiff’s work are original and protectable, followed by an examination of whether the defendant substantially appropriated those protected elements.  Here, almost all of the articles covering Congdon’s story contain a set of side-by-side photographs comparing Congdon’s original artwork with the allegedly infringing Cody Foster ornaments.  Many readers of these stories seem to have weighed the evidence and decided the substantial similarity question for themselves; as the online magazine The Bold Italic opines, “You don’t need a big investigation to understand where Cody Foster got the inspiration” for the ornaments in question.

    A defendant in a copyright-infringement action, in turn, may seek to rely on a “fair use” defense; fair use can be a “highly contentious topic,” and, as covered in previous posts on our blog, courts continue to explore the legal nuances of this defense.  If Cody Foster sought to establish a fair-use defense, however, it likely could face significant challenges, particularly as its alleged use of Congdon’s work was apparently for commercial profit, and Congdon has said that the design appropriates parts of her work that are her own “unique artistic signature,” not drawn from any photograph or existing source but from her imagination.  A court would also examine other factors, such as the amount and substantiality of the portion of the work used in relation to the entire copyrighted work; whether the defendant’s use impacted the potential market for or value of Congdon’s copyrighted work; and whether the allegedly infringing work is sufficiently “transformative” of the copyrighted work.

    Beyond the legal analysis, this story also illustrates how the internet can act as a triple-edged sword for independent artists.  Online outlets (from blogs to Etsy to Amazon Art) have made it easier than ever for independent artists to advertise and sell their work to a broad or even global audience.  And mainstream retailers are getting into the act of collaborating with independent artists too; you can buy a numbered limited-edition print from Crate&Barrel, or crib bedding designed by Congdon herself from baby-gear retailer Land of Nod.  The flip side of this exposure, though, is an increased risk of infringement; the public nature of these online marketplaces can leave artists vulnerable to copycats who may troll the web for “inspiration” and mass-produce cheap versions of original artwork without compensating the artist. Sellers of potentially infringing goods, however, should be wary of marketing infringing works, as they could face third-party liability in a copyright-infringement claim by an artist, as the Gagosian Gallery did in the recent Second Circuit case of Cariou v. Prince.

    Copyright infringement of the type Congdon alleges is a problem precisely because it is often profitable for the perpetrators (who can reproduce goods cheaply without paying a designer).  And some artists may never even learn of the infringement, or if they do, they may lack the resources to pursue legal action; as Fast Company points out, copyright-infringement litigation can be extremely expensive, and if an artist has not registered the copyright, legal fees may not be recoverable.  This story may shift the economic incentives for design piracy by reminding would-be infringers that, regardless of the outcome of any legal claim, a backlash in the court of public opinion can be costly.
    ATTORNEY: Kate Lucas
    CATEGORIES: Art MarketLegal Developments