Recently, Cody Foster & Co. came into the limelight due to their blatant design infringements of a number of independent artists’ works. Cody Foster sells wholesale holiday accessories and ornaments to big retail chains including Nordstroms, Fab, Anthropologie, and the like. They mass-produce holiday ornaments claiming to be inspired by “many sources but especially from offbeat vintage pieces and unconventional antiques.” Tell that to Lisa Congdon and Mimi Kirchner, just two of the many artists who have been ripped off. Cody Foster did not even take any effort to change the color or design of Lisa Congdon’s artwork while copying her work! It seems like the people at Cody Foster figured out that independent artists do not have $100,000 just lying around to sue them. Why even take the effort to appear like they created original work.
As far as taking legal action against them is concerned, although Lisa Congdon will most likely win the case, the legal fees involved will leave her worse off. I have known people who complain that copyright laws are not strong and do not adequately protect the creator. But the fact is they do, you just have to take the proper steps. Time and again, we have told our clients to register their copyright. Yes, a copyright exists automatically from the moment of creation and you need not necessarily register it. Your right to your intellectual property is protected against the world at large. But this protection is worthless if not enforceable. A registered copyright ensures there is a presumption of a valid copyright and plaintiff need not assume the burden of proving the same. A registered copyright also prevents the infringing party from taking an innocent infringement defense. But my favorite benefit of registration is that courts may order the infringing party to pay all attorney fees accrued. If an artist did not register her copyright with the copyright department and even though her intellectual property has clearly been infringed, she must consider the heavy financial burden approaching a court will involve. None of the artists involved have filed an infringement suit against Cody Foster nor do they intend to.
But there is justice in the world. After Lisa Congdon took up the issue on her blog, her considerably large fan-base showed support by spreading the word and if there’s one thing any large retailer hates it is being embroiled in controversy. To date Fab.com, Anthropologie, and West Elm have dropped Cody Foster products from their catalogs. Considering their corporate social responsibility, the retail chains still selling Cody & Foster products are probably conducting their own investigations into the issue before deciding to give them the boot. They will most likely be dropped by other leading retailers soon enough. But even though Cody Foster is getting what it deserves, the artists are not. Poetic justice is being delivered but what about compensation to the artists involved?
Cody Foster finally responded to the allegations and issued a statement posted in The Times, which reads in part: "Our explanation for how this happened is simple, though not excusable. Unfortunately it occurs regularly in this industry. 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. Our own designs have been directly lifted by other suppliers on many occasions and we have generally found straightforward ways to settle amicably between parties."
So basically they admit to an industrial trend of copying. If there is one thing everyone should take away from this episode is that please, for the love of all things great, register your copyrights!