Independent Artists On the Offensive After Zara Allegedly Steals Designs
08/02/2016Fast-fashion-brand Zara is facing a potential lawsuit—as well as an ongoing publicity battle—over accusations by a growing number of independent artists claiming Zara copied their designs. The firestorm began in mid-July when LA-based artist and designer Tuesday Bassen went public on Twitter with her belief that Zara had ripped off her designs for a series of pins and patches by reproducing them on Zara’s own line of iron-on patches.
In a series of tweets, she shared comparisons of her own work and the allegedly infringing Zara products. She even shared an excerpt of a letter she says she received from Zara’s legal team in response to her cease-and-desist letter, where Zara’s counsel apparently opines that Bassen’s work was not distinctive enough to support an infringement claim; expresses skepticism that any “significant part of the population” would associate the designs with Bassen; and minimizes previous copying accusations against Zara by noting they are a tiny fraction of the millions of visitors to Zara’s websites every month.
The tone of Zara’s letter prompted further outrage from and on behalf of Bassen, and soon, another artist (and Bassen’s friend), New York-based illustrator Adam Kurtz, joined the fray. Kurtz publicized a handful of his own designs he believes were copied by Zara or its related companies, and created a website, “Shop Art Theft,” to compile a collection of side-by-side images of original works by indie artists compared with Zara’s allegedly copied versions. From there, things snowballed, with more artists coming forward. Kurtz’s website now contains over three dozen examples of alleged rip-offs by Zara, and the number of artists claiming copying has gone from a handful, to more than a dozen, to more than twenty. And the story has gone viral; Kurtz’s website links to just a few of the many press accounts regarding the accusations, and some consumers are calling for a boycott of Zara in response, while other outlets are encouraging consumers to buy the original products directly from the artists.
Faced with a growing PR problem, Zara’s parent company, Inditex, has now sounded a slightly more cooperative note. In a statement, Inditex said that, in addition to communicating with Bassen’s counsel to try to “clarify and resolve” the matter, it has launched an internal investigation of the allegations and has “suspended” the sale of relevant items in its stores. It also suggested that some of the items came from “external suppliers,” potentially hinting that it may seek to shift any blame onto one or more of its vendors. Bassen, for her part, has said she intends to continue pursuing her claims.
Zara is known for churning out clothing inspired by the runway. And the design of an article of clothing is generally not copyrightable under U.S. copyright law; for example, the Second Circuit has held that copyright law doesn’t support a claim over the knockoff of a designer prom dress where design elements like sequins and layers of tulle were not “separable” from the useful article of clothing itself. The idea of separability, and the overall state of case law regarding garment design generally, is complicated (as we discussed in a recent post). But here, the copied items are not designs for clothing; they are decorative patches, and thus would seem to fall into the category of separable design elements (like an illustration or print on fabric) that should be, as a general matter, copyrightable.
Zara’s initial letter to Bassen suggests that Zara might also argue that the artists’ designs lack sufficient originality to be copyrightable; but that conclusion seems, at least, debatable. While some of the designs might be arguably more generic than others (compare, for example, Bassen’s illustration of a heart-shaped lollipop, with her illustration of a diary, complete with lock and the words “Keep Out” on the cover), commentators have noted that courts would likely examine the similarity between Bassen’s and Zara’s pieces as to overall arrangement of text, color, angle, and other graphic elements, as well as the fact that multiple items were apparently copied from the collections of several of the aggrieved artists. (Artists might also seek to emphasize that this is not the first time Zara has been accused of copying others’ works.) And putting aside the purely legal analysis of whether the artists might ultimately prevail in a lawsuit, this story also fits into a growing trend of independent artists facing off against large brands they suspect of profiting off of their work.
We’ve also seen this trend in graffiti art; brands such as American Eagle, Coach, Cavalli, and Starbucks have been sued by street artists for unauthorized use of graffiti art in connection with products. Another such case, against fashion house Moschino over the alleged appropriation of a work by graffiti artist Rime, recently settled after the artist prevailed against Moschino’s early attempts to dismiss the case.
As Bassen herself has pointed out, many lesser-known artists may lack the resources to pursue costly and time-consuming litigation against major companies. Yet as we saw in a similar case a few years ago, independent artists are sometimes able to marshal the power of social media—and bad publicity—to take their case to the consumers (who can compare items and draw their own conclusions) and elicit a response from a company suspected of copying. In short, companies who copy the work of emerging independent artists without permission or compensation do so at their own peril, risking not just financial liability but the goodwill of their brands.
Art Law Blog