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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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The case eventually was settled, but the amount Forever 21 paid Feral Childe remains confidential. The nondisclosure agreement, Burroughs explained, explicitly bans Feral Childe from speaking to the press about the case. Alice Wu, the Oakland-based designer for the company, wrote in an email response to my initial inquiry that "this is an issue we are very passionate about and we are frequently contacted by artists and designers who are going through what we had to endure." But based on the advice of her attorney, Wu declined to be interviewed, even on the broader topic, out of fear of violating the settlement agreement.

What's more troubling, as the complaint outlined, Forever 21 is "a notorious copyright abuser, having been charged in dozens of lawsuits with the exact sort of infringement alleged in this action." In fact, I recently spoke with another independent designer who is currently engaged in negotiations with the company regarding a product that is a clear knockoff. Representatives of Forever 21 did not respond to repeated requests for comment.

While nondisclosures are standard, in cases of repeat offenders — who are scamming artists that depend on customers valuing their unique designs — this conclusion can seem like a net win for the corporations. "These people break the rules and they never get called on it," said Colla, who referenced several artist friends who won't talk to reporters about their experiences. "If you rip somebody off, you just make them sign a nondisclosure agreement."

As a result, the thefts never come to light. "If I murder somebody, can we just have that stricken from the record?" Colla asked. "It circumvents justice."

While artists may initially struggle to comprehend how major retailers could engage in such blatant copying, a company like Forever 21 has obvious economic incentives to steal the work of independent artists. With the worst offenders, it's a built-in part of their business model, according to experts and lawyers who closely monitor these cases and the relevant industry trends.

"The company thinks they can get away with it, and if it ever becomes a problem, they can just settle it," explained Terry Hart, director of legal policy for the Washington, DC-based Copyright Alliance. "That's cheaper than licensing."

In other words, instead of hiring artists or contracting with designers, they steal first and pay later — and that's only if the creator can actually afford an attorney.

"They feel like there is no risk in doing it, and in a way there isn't," said Jonathan Bailey, a copyright consultant who runs the website Plagiarism Today. Some companies regularly solicit artists to send samples or design mock-ups, which they then pirate without compensation. "They say, 'We're not interested,' or, 'Your price is too high,' and then they hand [the sample] to someone else and say, 'Make something like this,'" he said.

Just one month before Colla's case came to light, a separate copyright controversy erupted surrounding the accusations of another Oakland artist. The illustrator, Lisa Congdon, posted an item on her blog in October titled "My Art Was Stolen For Profit"; like Colla's, Congdon's story quickly spread on social media. The alleged offender was Cody Foster & Co., a Nebraska-based wholesale company that specializes in holiday ornaments. Congdon's case sparked an avalanche of allegations against the company and shed light on how this theft may well be a routine part of its operations.

Congdon alleged that Cody Foster, in its 2013 holiday catalog, was selling an ornament that it had ripped off from one of Congdon's illustrations. Her original work, from 2011, was a reindeer wearing a jacket; the ornament in question was a nearly identical reindeer image in the same position with the same detailed patterns: "The copy is so blatant — down to the design elements on the animals' jackets — that it literally made my stomach turn when I saw it," she wrote on her blog.

The resemblance is undeniable. Congdon, who has since taken down her blog post, first learned of the theft from an anonymous Flickr user who has scrutinized the company's catalogs and published side-by-sides of all potential infringements. The magnitude of examples documented on Flickr was remarkable. Though that Flickr page recently went private, it originally featured about seventy different images, each displaying a different design that the company had, based on the evidence provided, lifted from other artists. A handful of independent designers were represented multiple times. Accusations against Cody Foster go as far back as 2009.

Congdon declined to comment for this story due to her ongoing negotiations with Cody Foster. But two other artists allegedly ripped off by the company in its 2013 holiday catalog agreed to talk.

"It sort of sucks the life out of you when you connect with these people," said Mimi Kirchner, one of the artists who was allegedly ripped off, explaining her decision not to pursue legal action (a decision that allows her to speak to the press, even if she will not get compensation). "On one hand, having them steal your stuff sucks the life out of you, and it's sort of like, how long do you want to keep this agony going?"

Kirchner, a Boston-based fiber artist known for her handcrafted dolls, was traveling last fall when she started to receive a flurry of emails about Cody Foster allegedly ripping off dolls that she made years earlier. She dismissed the accusations at first, but once she took a closer look, it was undeniable that Cody Foster had copied designs of her lumberjack, fish, and owl, she said. "Three pieces that are just like mine? Obviously, that is beyond a possibility of somehow being a coincidence."

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