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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 Cody Foster lumberjack ornaments had a lot of glaring similarities — eyes made in the exact same way as hers, identical suspenders and hats, and more. "You feel very violated," said Kirchner, who is 59 and works full-time as an artist. "It's not like any of us are making tons of money. We are all working super hard ... because it's what we love."

Cassandra Smith is a Milwaukee artist known for her hand-painted deer antlers — unique sculptures made from real antlers shed by deer. Cody Foster's 2013 catalog included antler ornaments that appeared to be miniature versions of products Smith sold through Terrain, a sister company of Anthropologie, in 2012. One knockoff used the exact same shades of three different colors in the same order.

"I don't know how many ornaments they've created, how many they've sold. It's mysterious," she said. "It's especially hard, because they are selling these products to the next party. ... They are almost deceiving these companies that are buying them as well."

Due to media coverage, Cody Foster is paying a price for its alleged theft, even if some of the infringed artists won't see a dime. Companies including Anthropologie, West Elm, and Fab — in the wake of Congdon's accusations and reports in the Los Angeles Times, Fast Company, and elsewhere — all severed ties with Cody Foster. In a statement, Cody Foster said that Congdon's actions have "caused documentable financial harm to our company."

"We don't want to take the risk again," said Abigail Jacobs, vice president of brand marketing for West Elm on why her company stopped doing business with Cody Foster. "It was really upsetting for us to see this unfold."

After agreeing to an interview last month, Cody Foster representatives changed their mind last-minute, citing the counsel of the company's attorney. Instead, a rep passed along the 300-word statement that the company released in November, which acknowledged that a "small number of products in our catalog of more than 1800 items bear strong similarities to ones being sold by others." Cody Foster pulled the products and offered refunds, the statement said, adding: "We deeply regret any harm we may have inadvertently caused to our customers and the artist community at large. We are instituting new processes and procedures to reduce the likelihood that this happens again."

The statement also pointed out that Congdon, too, has faced accusations of copyright infringement. "What has not been widely reported is that this same artist has now, herself, been criticized by independent art critics about the origins of her designs," the statement said.

In his initial email response, Brent Swim, purchasing and key accounts manager for Cody Foster, sent me links to blogs discrediting Congdon. One included more than a hundred of her illustrations next to photos that she may have copied or traced. Congdon declined to comment on these accusations, and it's uncertain if, in any of these cases, she had permission to use the work (and whether she may have violated copyright laws with her drawings).

Regardless, two wrongs don't make a right.

Finally, the official statement said that Cody Foster has also had its designs stolen in the past and offered this somewhat bizarre explanation: "Documenting 'artistic inspiration' for reproduced craft products — particularly for those based on folk designs — is a difficult process and presents a huge challenge for suppliers, artists and retailers alike."

It's unclear what exactly is "difficult" about documenting "artistic inspiration" — especially if, as Congdon argued in her blog post, evidence suggests that some of the knockoffs may have been quite deliberate.

A representative from Cody Foster "purportedly scours the internet ... and purchases things that they copy," she wrote. "Many artists from whom they've stolen (including my sister three years ago), have sales records from [Cody Foster]." Fast Company, in its first report on Cody Foster, corroborated the assertion that at least one infringed upon artist has receipts of sales by vice president Diane Foster, who allegedly shipped a product to Cody Foster headquarters.

In other words, Cody Foster representatives may very well have purchased the works of small designers and instructed their team to use them for "inspiration."

In September 2010, Paul Richmond finally got the package in the mail he had been waiting for — an oil painting titled "GAY ART NAKED MALE NUDE." The artwork came from China and it was one that he had sought for quite some time, featuring a young, handsome man on his knees, with his bare butt exposed, holding a tape measure up to another man's crotch.

Richmond, a Columbus, Ohio resident, is not a collector of gay erotica; he's a painter. And "GAY ART NAKED MALE NUDE" was not something he wanted to hang on his wall, but was, instead, an exact hand-painted copy of his original work, "Size Matters, Starring Jack Mackenroth."

If dealing with an American company like Cody Foster sounds like a headache, try taking on a manufacturer on the other side of the planet. Such was the case with Richmond, a painter who specializes in male figures and erotic art. Through a comically elaborate prank, Richmond got an intimate look at global copyright theft by posing as an American buyer named "Lawrence Michaels." Richmond chronicled his experience on his website, posting screenshots of emails between Michaels and Cai Jiang Xun, who was running an eBay store called MJART where he sold exact replicas of Richmond's works.

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