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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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Representatives from Nasty Gal, Charlotte Russe, and Fashion Destination did not respond to repeated requests for comment.

Even if these companies asked Spinello for permission and offered to license her design, she would, as a matter of principle, decline; she doesn't support this kind of mass production overseas. Her fear, then, is that potential customers might assume she has licensed her works to these businesses — or worse, they may think she was copying their designs.

"I would not work with these companies," she said. "But that shouldn't be an excuse for them to steal from me."

Spinello is now working with Emily Danchuk, a lawyer who hopes to tackle the problem of intellectual property theft in a more aggressive way than via cease-and-desist letters. Danchuk represents artists and small businesses across the country in copyright disputes and is in the process of launching Copyright Collaborative, an association that offers members tools to combat infringement. "I'm trying to unionize artists. A lot of them feel really alone in this," said Danchuk, who is based in Portland, Maine. "I am trying to be proactive here, instead of reactive in protecting their intellectual property. This is not to increase litigation; it's to decrease litigation, and decrease all the bullshit involved in going after these infringers."

The time has come, she said, for artists to make their message clear: "We are done. We are not giving away our artwork for free anymore."

The goal of Copyright Collaborative is to educate artists and creative businesses about their rights. The collaborative offers programs and tutorials to support this objective, including helping artists file US Copyright applications to register their works before a potential infringement arises. This step — often unfamiliar to artists focused on their craft and not on copyright law — is a critical legal tool.

It costs $35 to register a work online, although artists can register a group of works as a set to save money. The registration entitles a copyright owner to receive statutory damages and attorney fees in the case of infringement and must be filed prior to the infringement, Danchuk explained. Without it, the artist is only entitled to losses, which, in most of these cases, are difficult to quantify and prove and thus make litigation unwise. She cited one recent case in which a company made roughly $200,000 off of her client's designs and, after initial negotiations, offered a settlement of just under $7,000. This artist had not registered the work.

"I'm probably going to tell my client to take it," she said, noting that the infringer has an attorney on staff and can afford to fight back. "It's a really crappy situation."

Copyright Collaborative also has a policing program through which it scours catalogs, websites, and trade shows for counterfeit copies and unauthorized use of members' works. Members can join for free and access some of the basic programs or pay a monthly $15 fee for an "artist membership" that makes all the different tools and programs available to them.

The larger goal of the collaborative is to help push a culture shift such that infringement is much more widely considered to be an unacceptable practice. "Identification of the problem is job number one. Artists really have a responsibility to educate themselves on the laws," she said. "Once artists start doing that, companies realize they can't take advantage of them."

The Copyright Collaborative has a Movement Against Creative Shoplifting program that aims to increase consumer education about the harmful impacts of infringement and support whistleblowers willing to expose companies. Additionally, the collaborative is launching an "Infringement-Free" Certification Program aimed at rewarding businesses that pledge not to steal copyrighted material.

Increased awareness can have a tangible effect. Rae Dunn, a potter in Berkeley who said that two large American companies had ripped off her plate designs, has noticed a shift since Congdon spoke out about Cody Foster. Notably, a large retail company recently called her up and asked if she wanted credit and a nominal fee for a design of hers it was using. This indicated to her that it was already in the process of copying her work and was worried about getting in trouble.

"I believe it's because of Lisa [Congdon] that companies are now starting to be aware that they can't get away with this," said Dunn, adding, "I think artists are not going to stand for this anymore. They are going to stand up for themselves and try to fight back, even though it's really hard to fight against these big companies. But anything is better than nothing. It's important to take some sort of stance."

In terms of broader solutions, some copyright attorneys hope to see larger-scale policy reforms that would give artists' stronger protections. One notable barrier for artists is that copyright disputes are governed exclusively by federal law and must be brought in federal district court. At the request of the US House of Representatives Judiciary Committee, the US Copyright Office last fall released a report in September on the difficulties creators face in copyright cases and recommended Congress consider a "small claims" court alternative that would be more accessible. Congress is scheduled to continue its ongoing review of copyright law this year, with hearings that will likely explore the small claims recommendations.

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