Eddie Colla often gets messages from fans and friends alerting him to advertisements on websites like Etsy and Zazzle offering blatant knockoffs of his art. Sometimes, the Oakland visual artist will reluctantly google a sentence he first wrote in 2009 that is part of one of his most popular works of street art: “If you want to achieve greatness, stop asking for permission.” Those words appear in a piece titled “Ambition,” which also features a woman with a handkerchief over her mouth and a can of spray paint in her hand.
The results of the search are reliably depressing. Colla, who does graffiti-style projects, will invariably find a range of bizarre rip-offs from obscure companies and websites that may be profiting from his design — with T-shirts, posters, prints, and more. They did not ask for permission. Twice, in recent years, he has even discovered other artists presenting his work as their own at galleries.
He thought he had seen it all, but a Facebook message he received in November was truly shocking: Walmart was selling an exact replica of “Ambition” — and attributing it to Banksy, the celebrity street artist.
“I fucking hate Walmart and everything they stand for,” Colla told me a few weeks after he first discovered the listing. “I guess this is the natural chain of events. It can only keep getting worse. And what’s the pinnacle of bad? Walmart. Fucking really? It’s like why don’t you just piss in my face?”
The copyright theft also carried another absurd irony: Colla has a history of directly protesting corporate greed through his art and activist work. In the early days of Occupy Wall Street in 2011, he designed a popular “ninety-nine to one” sticker that featured the iconic Anonymous mask. The Walmart.com Marketplace ad for the “Bansky” canvas, available for $25.49 - $66.69, also used the title “Asking for Permission.”
“The idea of Walmart in any way, shape, or form entering into the world of art and art sales, I find completely disturbing,” said Colla, a full-time artist in his early forties who lives and works in East Oakland.
News of the theft began to spread on social media a few weeks later when Colla offered a response to the Walmart ad, a revised version of “Ambition,” called, “It’s Only Stealing If You Get Caught.” It featured the woman from his original image next to the words “Introducing The Anti-Establishment Left Wing Subversive Vandalism Collection.” At the bottom: “Glorified Vandalism Available Now At: Walmart.” He sold limited editions of these screen prints in early December and put up a temporary billboard version in San Francisco. Walmart removed the item in the wake of the media firestorm, and Colla is now exploring possible legal action.
While Walmart’s fake Banksy was particularly ludicrous, Colla’s situation is far from unique. Visual artists and designers throughout the Bay Area and across the country are, at alarming rates, facing copyright infringements from large retail and wholesale companies stealing their intellectual property for their own products and profit. As artists increasingly promote their work and crafts online — through Etsy or their own websites and Facebook pages — corporations are stealing their designs and mass-producing them for sale. Over the last several months, I collected stories from two dozen artists who have faced various forms of this corporate theft. They have been horrified to discover, often through the sheer luck of a colleague or fan stumbling upon a link, that companies are advertising and selling their designs without their permission — and, of course, without compensation. Sometimes, it happens overseas in Chinese factories. In other cases, US companies are responsible. Some involve woeful ignorance of copyright law; others appear to be more sinister. In a majority of rip-offs, the business caught in the act denies responsibility by blaming third-party suppliers or wholesalers — many who remain unknown.
“With the click of the mouse, you can steal content,” said Ellen Seidler, a Berkeley-based filmmaker and professor at Contra Costa College who has blogged about copyright infringement for years since her independent film was widely pirated. “It doesn’t somehow get perceived as theft, but it is.”
If artists are persistent and have resources to go to court, the best-case scenario is that the infringer will stop selling the knockoff and pay the designer a small settlement. And almost universally, all settlements involve a non-disclosure agreement that bans the artist from speaking about the case. It’s thus easy for thieves to avoid scrutiny, making this kind of art theft a calculated financial decision for some businesses. For most artists, there’s nothing they can do about it. And if they want retroactive compensation, they must agree to remain silent.
“The item has been removed from our site,” Bao Nguyen, Walmart spokesperson, told me in an email, regarding Colla’s print. “Since it was sold through our third-party marketplace partner, we’re investigating the item with them. We’ve instructed them to review their artwork to ensure the descriptions are accurate.” Walmart, he added, chooses partners selectively based on their ability to comply with copyright requirements.
The “partner” in this case was Wayfair.com, an online home décor store that’s headquartered in Boston and boasts the tagline “a zillion things home.” Spokesperson Jane Carpenter told me in email that the company pulled the item from its own site and partner sites “as soon as we became aware of this situation.” Wayfair, she said, works with more than 8,000 suppliers and is “looking into this matter further with the supplier who provided the prints.”
Even after being repeatedly pressed for comment about the entity responsible, Carpenter declined to offer details: “We are not naming the supplier.”
Dan Fontes, a longtime East Bay muralist, recently considered designing and selling postcards featuring one of his signature works: massive paintings of giraffes underneath Interstate 580 in Oakland. The oil-on-concrete animals, more than thirty feet tall and six feet wide, are striking works of public art that he first painted in 1983. When he started exploring the concept of postcards, he quickly discovered that online profiteers were one step ahead of him.
He found not only an abundance of photos of his murals on the photo-sharing site Flickr and elsewhere, he also found individuals selling reproductions of his original work in the form of greeting cards. “My jaw just hit the table,” said Fontes, who is 55 and now lives in San Rafael. “Who are you to be doing this? It’s frustrating. That’s mine and people are selling it and making money.” Fontes is not opposed to partnering with other artists or retailers to sell his work. But he had never heard from these sellers who appeared to be profiting from his art.
Fontes said he has dealt with occasional infringements for decades, often from people who don’t understand that art displayed in public places is protected by copyright law. And the risk, he said, has become much greater in recent years as images of his work have spread online, without credit.
In the recent case of the giraffe greeting cards, Fontes decided not to pursue legal action. This is a common outcome in art infringement cases, both for low-level rip-offs that aren’t worth the trouble as well as for larger-scale corporate thefts where a legal battle seems insurmountable or frightening. “I would need a full-time person to go out and research this,” he said. “I don’t have time for this kind of nonsense.”
There’s no data available on how often the for-profit theft of visual art occurs, but based on accounts from artists and copyright attorneys, the problem appears to be widespread. I interviewed twelve artists who shared specific stories and evidence of their copyright infringement cases. Most have taken, or are currently in the process of taking, some form of legal action, through initial cease-and-desist letters or full-fledged lawsuits. A handful have won small settlements. I also connected directly and indirectly with a dozen more artists who could not speak openly out about their infringements due to nondisclosure agreements or ongoing negotiations.
In addition, nearly every artist I spoke to has faced many cases of copyright infringement in recent years — typically a regular stream of obscure knockoffs on sites like Etsy and eBay in addition to one or two more harmful instances involving large retail companies. They reported that virtually all of their artist friends have dealt with similar challenges and noted that many of the infringers are repeat offenders. All of these factors suggest theft is rampant. If you promote your work online — even with only limited success — your art is vulnerable.
Scott Burroughs, an attorney with a Los Angeles-based law firm, said his company takes on dozens of copyright cases each year on behalf of artists. His firm has gone after many notable corporations, including Ross Stores, Love Culture, Urban Outfitters, and Forever 21, for allegedly ripping off independent designers.
“These cases are very expensive to litigate,” said Burroughs, who also runs a blog on copyright issues called You Thought We Wouldn’t Notice. “That’s the sort of thing that companies count on.”
Even when he is able to successfully negotiate settlements, it can be a draining experience for his clients, he said. “Artists are very emotionally involved in their work. … And it’s their livelihood. Stealing from them and monetizing and commercializing their work, it can be very upsetting.”
One of his clients was Feral Childe, a women’s fashion company based in Oakland and New York City, which sued Forever 21 for copyright infringement over a textile design in 2011. Feral Childe markets itself as a business dedicated to sustainable practices — using eco-friendly materials, manufacturing in the United States, and relying on domestic printers and dye-houses in California. Forever 21, which is headquartered in Los Angeles, “misappropriated one of Feral Childe’s unique, hand-drawn designs, slapped it on a wide range of product, and distributed and sold said product to the public through its brick and mortar and online retail outlets,” stated the federal lawsuit that Feral Childe filed against Forever 21. The copyrighted material was a detailed, cross-hatched “teepee and crown” textile design that Feral Childe created prior to its appearance in Forever 21 stores.
The retail chain purchased the garment from Feral Childe, directly or through a third party, and made the “most slight alterations” in an “attempt to evade detection for its infringement,” according to the lawsuit. The images included in the legal case showed a very clear resemblance that, as the complaint stated, is “too striking to be the result of anything other than unlawful copying.” Burroughs filed suit after Forever 21 refused to cease sales — even after it received notice of the infringement. The complaint noted that Feral Childe was entitled to statutory damages of up to $150,000, which is the maximum established in the US Copyright Act.
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.”
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.
“I kept toying with him until it became so absurd,” Richmond recalled.
Richmond and two friends also made fake names and email addresses and pretended to be from a fictional company Pinup Fantasy that was interested in commissioning Xun’s work. They tricked Xun into sending photos of himself with Richmond’s knockoffs and at one point even had him sign a copyright form stating that the works were his originals.
In the first email response to Michaels, Xun said he has “been experienced in gay man oil painting more than 28 years” and that his inspiration comes from “MY observation,Reading and imagination [sic].” Enclosed were 21 jpegs — all identical reproductions of Richmond’s works with his signature carefully removed.
The undercover operation offered a rare insight into the world of Chinese copyright violations, providing Richmond with shocking details on how someone overseas can steal his intellectual property, mass produce the artwork, and profit tremendously.
International theft cases are virtually impossible to pursue, and even bad press is not much of a weapon, since these individuals can hide behind obscure eBay ads that offer very little information about their business.
After a string of negotiations with “Pinup,” Xun offered to produce 260 pieces for $63,000, the emails showed. What’s more, in one early email, Xun said he had, in only two months, sold 130 versions of the knockoff, for which he was charging $399 each. If he was telling the truth, that’s more than $51,000 he had already made off of Richmond, just for one of his paintings. And given the short timeframe Xun presented for bulk production, it is likely he had some factory-style operation, Richmond said. The painting that arrived in the mail had subtle differences in brushstrokes and came without a frame, but it was otherwise nearly indistinguishable from the original sitting in his studio.
Richmond eventually revealed his identity to Xun in a final email and never heard from him again. He did not pursue legal action at the advice of multiple attorneys and copyright experts who said that a lawsuit would be a losing battle. Xun did not respond to my request for comment at the email address from which he originally corresponded with Richmond.
These mass-produced Chinese knockoffs can have a serious negative impact on an artist like Richmond, who sells an original painting like the one in question for more than $2,000, or five times the price of the illegal replica. Richmond’s case is also likely not the most common form of international copyright theft; I interviewed a diverse range of crafters — potters, jewelers, fashion designers, candle makers, and more — who all had their designs stolen and shipped overseas for mass production.
Whitney Smith, an Oakland potter with a studio in Lake Merritt, said she was shocked to discover in 2009 an exact replica of one of her unique vases on sale in a small gift shop in San Luis Obispo. She later learned that the design came from Amscan, Inc., a wholesale and retail company headquartered in Elmsford, New York.
“This was a really specific piece,” she said, noting that she quickly located the item online and saw that the company was even photographing it in the same way as she did. “It’s like someone is stealing something right from your brain.”
In the gift store that day, she picked up one of the vases, a miniature version of hers, on sale for $7.95. She was, as the time, selling hers for $140. At the bottom of the knockoff was a revealing and upsetting stamp: “MADE IN CHINA.” After a lawyer friend sent Amscan a cease-and-desist letter, the company removed the vase from its website and product line. Amscan did not respond to requests for comment.
Jamie Spinello, a jewelry designer and former Oakland resident who now lives in Austin, said that, since October of 2013, she has had about eight of her designs ripped off by four corporations, including Nasty Gal, Charlotte Russe, and Fashion Destination, which sells products on Amazon.com. She shared incriminating evidence of these companies selling necklaces nearly identical to her own originals. She crafts her works by hand in her garage studio and sells them online — with prices that reflect the time she puts into each individual work.
Spinello was appalled last fall to find through reverse image searches that these companies were selling illegal reproductions of her designs. She and her attorney said it’s clear that some of the knockoffs had originated with a Chinese manufacturer and then cheaply made their way into these American retail and e-commerce stores. In the case of one of the designs that had apparently been sold in bulk, she sold her original version only three times — one to a friend of hers.
“I’m not a well-known designer,” she said, noting that her necklaces have been featured on design blogs, which is likely where the infringer found them. In an email Spinello’s attorney shared with me, Nasty Gal’s senior counsel Pooja Teckchandani said the company had no role in creating the design but refused to provide information on the vendor responsible. Teckchandani offered to share this information along with data on the company’s sale of her necklace — only if Spinello signed a release agreement stating she would not pursue legal action against Nasty Gal.
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.
Last year, federal officials also acknowledged flaws in the “notice and takedown system,” that make the process very challenging for artists. In a July 2013 paper on copyright policy, the US Department of Commerce’s Internet Policy Task Force noted that individual creators or small enterprises do not have the resources to engage in ongoing monitoring and notification process required by the Digital Millennium Copyright Act (DCMA). The report cited concerns from copyright holders regarding the “brief effective lifespan of takedowns” and the “lack of any affirmative duty to monitor by ISPs [Internet Service Providers].”
“Right holders report that they find themselves in a game of ‘whack-a-mole’ — a never-ending cycle of sending notices about infringing content that may be taken down, only to reappear a short time later in a new location on the same website,” the report said, noting that the system might work better if “takedown” meant “staydown.” Legislation could impose a system in which copyrighted content was flagged and blocked, though such a system would likely come with a range of technical and legal challenges, the report continued. It noted that voluntary cooperation between ISPs and right holders would offer a more flexible way of addressing the problem. Currently, through the DCMA, certain online companies are shielded from liability through “safe harbors” that protect them when they are serving as a “conduit for transmitting content.”
In other words, if companies like Amazon, Etsy, and eBay adopted stricter, more proactive anti-infringement policies — or were required to do so through legislation — it could go a long way in tackling the problem. In Spinello’s case, for example, after she notified Amazon of the infringement by Fashion Destination, the site removed the necklaces from its catalog. Weeks later, however, the Fashion Destination listings were back up again on Amazon with virtually identical listings — same product numbers, titles, and images.
“I’m sick of playing games with these people,” Spinello said during a phone interview after discovering, only because of our conversation, that the items were back up again even after she thought they had been permanently removed weeks earlier. “My heart is beating really fast right now. That’s just so ballsy of them.” Similarly, Nasty Gal, another one of her recent infringers, told Spinello it removed its necklace rip-off, but months later the item is still viewable on the site, simply with a “sold out” notice added.
Richmond, the Ohio painter, has had the same problem with eBay for years. Xun’s original eBay store disappeared after his elaborate prank, but similar versions have continued to pop up on the site since 2010. After talking with me last month, Richmond did a fresh search and quickly emailed more than ten different current links on eBay of pirated paintings of his, all from China, and with many similarities to the original listings from Xun. The ads have a similar format and language and some variation of the title, “Oil painting gay art male nude.” It could very well be Xun using a different name.
All Richmond can do is send takedown notices to eBay, which typically complies, but does nothing to prevent the user from returning days later selling the exact same rip-off. “I’ve reported people so many times and then I see their store right back up there again. There must be a way that eBay can be stricter,” he said, arguing that when these fraudulent companies have successful stores, eBay, which profits from their success, has little incentive to permanently shut them down.
Representatives of eBay did not respond to repeated requests for comment. And reps from other websites did not indicate any interest in changing their current practices.
Erik Fairleigh, Amazon spokesperson, said in an email: “Amazon respects the intellectual property of others and takes this matter very seriously,” and declined to comment further on the topic of blocking repeat infringers.
She added: “With regard to intellectual property and copyright, Etsy is a venue, not a judge or jury.”
It was cold inside Eddie Colla’s studio on a Wednesday morning in December. The long-time East Bay artist lives next door to the roughly 4,000-square-foot warehouse studio that he shares with several other artists on a desolate street in East Oakland.
Taking a break from his work, Colla recalled a day in 2009 when he scribbled his now-famous idea on a piece of paper: “If you want to achieve greatness, stop asking for permission.” The sentence seemed “wordy and cumbersome” and he didn’t think twice about it, he said. But a friend later noticed the quote lying on his desk and suggested he do something with it.
The original message was that street artists should not worry about the approval of others. “If you make your success contingent on someone else’s validation, you’re setting yourself up for failure,” he said. Now, it’s largely associated with Walmart’s theft.
Similarly, Colla doesn’t want to waste any more energy thinking about Walmart or worrying about the seemingly endless theft of his art. The initial back-and-forth with his attorney has already become an annoying distraction, he said. Colla added that any settlement he may be able to negotiate would be meaningless to a company like Walmart. “The first action I took is to talk about it,” he said. “Bad publicity has a sort of shelf life. The money doesn’t hold people accountable.”
And in a few cases, positive publicity for infringed-upon artists is a tiny silver lining to a horrible nightmare. Several artists interviewed for this story reported that the exposure led to a small boost in sales. The revenue was nothing compared to losses from the infringement — but it was still a nice reminder that their work is valued.
Kirchner, one of Cody Foster’s alleged victims, will not get any compensation from the ornament rip-off because she did not pursue legal action. But it wasn’t a total loss: Representatives from West Elm, one of the companies that broke ties with Cody Foster, decided that they liked her dolls and want to work with her going forward.
Next holiday season, West Elm is going to do it the right way. It’s hiring Kirchner as a collaborative designer.