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When Corporations Want Profits, They Don't Ask for Permission

Large retail companies are stealing the work of independent artists — and forcing them to remain silent about it. 



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Even after being repeatedly pressed for comment about the entity responsible, Carpenter declined to offer details: "We are not naming the supplier."

Dan Fontes, a longtime East Bay muralist, recently considered designing and selling postcards featuring one of his signature works: massive paintings of giraffes underneath Interstate 580 in Oakland. The oil-on-concrete animals, more than thirty feet tall and six feet wide, are striking works of public art that he first painted in 1983. When he started exploring the concept of postcards, he quickly discovered that online profiteers were one step ahead of him.

He found not only an abundance of photos of his murals on the photo-sharing site Flickr and elsewhere, he also found individuals selling reproductions of his original work in the form of greeting cards. "My jaw just hit the table," said Fontes, who is 55 and now lives in San Rafael. "Who are you to be doing this? It's frustrating. That's mine and people are selling it and making money." Fontes is not opposed to partnering with other artists or retailers to sell his work. But he had never heard from these sellers who appeared to be profiting from his art.

Fontes said he has dealt with occasional infringements for decades, often from people who don't understand that art displayed in public places is protected by copyright law. And the risk, he said, has become much greater in recent years as images of his work have spread online, without credit.

In the recent case of the giraffe greeting cards, Fontes decided not to pursue legal action. This is a common outcome in art infringement cases, both for low-level rip-offs that aren't worth the trouble as well as for larger-scale corporate thefts where a legal battle seems insurmountable or frightening. "I would need a full-time person to go out and research this," he said. "I don't have time for this kind of nonsense."

There's no data available on how often the for-profit theft of visual art occurs, but based on accounts from artists and copyright attorneys, the problem appears to be widespread. I interviewed twelve artists who shared specific stories and evidence of their copyright infringement cases. Most have taken, or are currently in the process of taking, some form of legal action, through initial cease-and-desist letters or full-fledged lawsuits. A handful have won small settlements. I also connected directly and indirectly with a dozen more artists who could not speak openly out about their infringements due to nondisclosure agreements or ongoing negotiations.

In addition, nearly every artist I spoke to has faced many cases of copyright infringement in recent years — typically a regular stream of obscure knockoffs on sites like Etsy and eBay in addition to one or two more harmful instances involving large retail companies. They reported that virtually all of their artist friends have dealt with similar challenges and noted that many of the infringers are repeat offenders. All of these factors suggest theft is rampant. If you promote your work online — even with only limited success — your art is vulnerable.

Scott Burroughs, an attorney with a Los Angeles-based law firm, said his company takes on dozens of copyright cases each year on behalf of artists. His firm has gone after many notable corporations, including Ross Stores, Love Culture, Urban Outfitters, and Forever 21, for allegedly ripping off independent designers.

"These cases are very expensive to litigate," said Burroughs, who also runs a blog on copyright issues called You Thought We Wouldn't Notice. "That's the sort of thing that companies count on."

Even when he is able to successfully negotiate settlements, it can be a draining experience for his clients, he said. "Artists are very emotionally involved in their work. ... And it's their livelihood. Stealing from them and monetizing and commercializing their work, it can be very upsetting."

One of his clients was Feral Childe, a women's fashion company based in Oakland and New York City, which sued Forever 21 for copyright infringement over a textile design in 2011. Feral Childe markets itself as a business dedicated to sustainable practices — using eco-friendly materials, manufacturing in the United States, and relying on domestic printers and dye-houses in California. Forever 21, which is headquartered in Los Angeles, "misappropriated one of Feral Childe's unique, hand-drawn designs, slapped it on a wide range of product, and distributed and sold said product to the public through its brick and mortar and online retail outlets," stated the federal lawsuit that Feral Childe filed against Forever 21. The copyrighted material was a detailed, cross-hatched "teepee and crown" textile design that Feral Childe created prior to its appearance in Forever 21 stores.

The retail chain purchased the garment from Feral Childe, directly or through a third party, and made the "most slight alterations" in an "attempt to evade detection for its infringement," according to the lawsuit. The images included in the legal case showed a very clear resemblance that, as the complaint stated, is "too striking to be the result of anything other than unlawful copying." Burroughs filed suit after Forever 21 refused to cease sales — even after it received notice of the infringement. The complaint noted that Feral Childe was entitled to statutory damages of up to $150,000, which is the maximum established in the US Copyright Act.

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