Photo via Wikipedia Commons
We asked a lawyer if independent artists have any recourse when a corporation copies their work.
When the trendy fast fashion retailer Zara released their Summer 2016 collection, which featured colorful, pop-y enamel pins and Instagram-ready patches, a number of artists—who sell their work through Tumblr, Etsy, or in their own independent stores—saw images that were eerily familiar. In fact, they recognized their work instantly.
Adam Kurtz, a New York–based graphic designer known for making balloons that read "Sorry I Am Such An Asshole" and who has collaborated with brands like Print All Over Me, said he was surprised when he saw one of his pins blatantly copied in Zara's new collection, though his work has been plagiarized before and he frequently has to email Amazon to take down copies of his balloons.
Read more: The Artist Making Appropriation Look Good
Earlier this week, Kurtz cheekily started a section in his online shop to boost the visibility of this rampant phenomenon: "Unauthorized reproductions. Shop the look!" The page features dozens of side-by-side comparisons of the original work and the Zara knock-offs. Los Angeles–based artist Tuesday Bassen, who has worked with major brands and done illustration work for Broadly, also discovered that Zara started selling a design identical to one of her pins—a heart-shaped lollipop. The 27-year-old illustrator took to Instagram to point out the similarities, saying that the retailer had been replicating her designs throughout the past year. According to the post, when she and her lawyer contacted the company, they said she had no claims to her own designs.
Photo via @tuesdaybassen
"We reject your claims here for reasons similar to those stated above: the lack of distinctiveness of your client's purported designs makes it very hard to see how a significant part of the population anywhere in the world would associate the signs with Tuesday Bassen," the retailer wrote.
In the same post, Bassen mentioned that she had spent $2,000 in legal fees just to get this disappointing response.
But according to a Leila Amineddoleh, a lawyer who specializes in art copyright law, Zara's response "was completely irrelevant and off the mark." Amineddoleh told Broadly that Zara is technically liable under copyright infringement laws. "From what I've seen, it looks like Zara has copied the designs of the artist," she said. "They've claimed that because Zara has so many more followers than the artist, even though the images are similar, copyright law doesn't protect [Bassen]. But copyright law protects everyone. The law states that you need to create something that's original in a fixed, tangible medium [in order for it to be copyrighted]. That's exactly what [Bassen] did. There's nothing that requires it to be a well-known image. As far as originality is concerned, the bar is very, very low."
But in terms of litigating the case, it's still hard for an independent artist to go up against a multi-billion-dollar corporation. "I do think her work was infringed," Amineddoleh said. "However, I imagine that this case would probably settle."
In other words, companies like Zara pay virtually no penalties for stealing work from indie artists. "I think it's become really common for large companies to do this to smaller, unknown artists," Amineddoleh said. "They have so much more money, and they know that pursuing these lawsuits is very costly and a lot of artists can't afford to go through with them. I think these companies think the artists will either cave in and not do anything, or settle for a really low amount."
PacSun, the teen-wave surf retailer that filed for bankruptcy earlier this year, and Forever 21 have also been accused of this practice. Gabriella Sanchez, a freelance LA artist, is currently embroiled in a battle with the former over one of her designs, a heart patch that reads, "Don't text him," which she says that Zara also copied. She added that while she was an in-house designer at the retailer Bando a few months ago, Forever 21 copied a pin she made that said, "Fries before guys."
She's currently talking with PacSun about the alleged copyright infringement, but she's coming up against the same problems as Bassen: an evading company and expensive legal fees. "This is a huge learning process for me," Sanchez told Broadly. "I am getting consultation from lawyers, but I'm personally the one litigating the situation because it's cheaper that way. It seems like they know they can push me around a little more and give me half pictures of things."
Photo via @_gabriella_sanchez
For example, Sanchez said PacSun made it appear as if the shirt was produced by an independent vendor. "The infringement was done by one of PacSun's in-house brands, but when I first emailed them, they didn't tell me that. They said [the infringement] was a miscommunication with a vendor. I had to do a ton of digging to find out that that brand was actually a part of PacSun."
Then, "They wrote back and said they pulled the shirts, but to date they're still in some stores," she said. "It's hard to have any confirmation that they're doing what they say: that they've pulled the product, that they've only made a certain amount of money on the shirts, blah, blah, blah. They told me how much they made from the shirts, but I don't really know if it's accurate, because they're still for sale in some stores."
Sanchez declined to comment on how much money PacSun reported they made from the sale of the "Don't text him" shirts. "I'm still talking with PacSun, so I'm a little nervous to say anything too specific," she said. She's also worried that any fuss she makes over this might jeopardize future relationships with other brands.
These companies think the artists will either cave in and not do anything, or settle for a really low amount.
"I'm actually OK [with it] when you can see when people [have been] inspired by different things—we don't live in a bubble," she added. "But for people to blatantly copy it without trying to make it their own or make something new with that inspiration is just laziness. When big companies do it, it's just because they're trying to skip out on paying artists and make money on designs that they know are popular."
In a statement, Zara's parent company, Inditex, told Buzzfeed News, "Inditex respects any third party's creativity and takes all claims concerning third party intellectual property rights very seriously. On receiving these allegations, the relevant items were immediately suspended from sale and an investigation opened. In parallel, Inditex's legal team also contacted Tuesday Bassen's lawyers to clarify and resolve the situation. Inditex has more than 600 designers in house that create more than 50,000 designs a year, it has the highest respect towards each individual's creativity and will investigate this specific case to its end." Bassen, however, said Inditex has not reached out to her or her lawyers and two of her designs are still for sale by another Inditex-owned retailer, Bershka.
Broadly has reached out to PacSun for additional comment, but they did not respond in time for publication.
If you want to support independent artists, you can purchase their work here.
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