More Independent Artists Taking Companies To Court To Protect IP

Independent artists are becoming increasingly litigious in an effort to protect copyright of their original designs that end up being sold by retailers or used in promotional materials for corporations. And retailers may be held liable in these cases, whether or not they were aware of the alleged infringement.

Even when artists can’t afford to take a company to court, they’ve found other ways to impact businesses, via the Internet. The small, independent designers who had their creations ripped off by nationally distributed label Cody Foster & Co. didn’t necessarily have the funds for a protracted copyright battle. But the major retailers carrying the brand immediately dropped the Cody Foster lines anyway, in the face of growing Internet outrage.

“Retailers buying product from a supplier should make sure the supply contract includes a representation and warranty that the supplier has any intellectual property rights necessary to distribute the goods,” said Judy Jennison, partner in Perkins Coie’s litigation practice with a focus on IP. “Companies should also consider asking the supplier to indemnify the retailer if the retailer receives a complaint by a third party artist.”

Cody Foster responded to the groundswell of Internet anger by pulling the items identified. However, though the company acknowledged many of its products “bear strong similarities” to items being sold by independent artists, it made no offer to recompense the artists, instead offering refunds to customers who purchased the items. “When retailers receive complaints from artists, they should promptly and thoroughly investigate,” Jennison said. “If the retailer concludes that the complaint is warranted, it should encourage the supplier to resolve the dispute in good faith by compensating the artist appropriately. If the supplier is unwilling or unable to do that, the retailer can engage with the artist directly.”

The artists in Cody Foster’s case did not take lightly to the supplier’s response, and continued with suits and discussions about the company online. Cody Foster then offered one designer suing the firm a settlement: They would license her designs for $650, and she would submit to a gag order. The order would have gone beyond just keeping designer Cassandra Smith from talking about the legal case – it would require her to delete any mention of the case from her blog, Twitter, Facebook, and more. Smith refused the offer. In another convoluted copyright case, Cody Foster has threatened to sue the individual who posted pictures placing the artists’ designs and Cody Foster’s products side-by-side. That lawsuit? Also for copyright infringement.

“If the retailer concludes that a supplier is routinely cavalier about obtaining the necessary copyrights from artists, my advice to the retailer is to sever the business relationship,” Jennison says. “Retailers can be subject to claims that they are or should be liable for selling the infringing product even if the retailer had no way of knowing the product was unlicensed. Even if the retailer is able to defeat such a claim in court, few retailers need that kind of aggravation and business distraction.”