Following the Cody Foster & Co. Caper

For those following the Cody Foster & Co. fiasco, the story has been unfolding for quite some time. I was asked to document my experience and perspective as an artist who was ripped off by the infamous ornamentors. 

I hadn’t heard of Cody Foster & Co. prior to December 2009, when a fellow crafter reached out to me.  She emailed, “I am currently dealing with a copyright issue fighting against a company who purchased an animal from my Etsy shop, had it mass-produced in China and is now selling it in retail shops across the US. I wanted to contact you to let you know that this particular listing was purchased by the same company.”

At that time, Etsy purchases were transparent and public; their system was set up so that you could look at a seller’s or buyer’s history and see exactly which items were purchased and when, and, most importantly, by whom.  That transparency made it easy to find the buyer in question, Alchemy. I looked through Alchemy’s history and documented a handful of purchases.  Those purchases were eerily similar to products that appeared in Cody Foster & Co. catalogs during the previous years. Each year, around the holidays, a few more doppelgangers would show up and I documented those similarities as well.

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Upon reviewing the Holiday 2013 Cody Foster & Co. catalog, I found that there were designs which were very similar to several popular artists, including Lisa Congdon, Mimi Kirchner, and Abigail Brown. I wasn’t ethically comfortable profiting from other artists’ losses by gaining site traffic associating my name with the discovery of the issue, so I decided the best approach was to set up a Flickr account under a pseudonym, safely away from my own personal sites.  IP Isn’t Free was thus born.  The stream of images not only included similarities I had discovered, but also contained comparisons submitted by friends and strangers, including shop owners who previously stocked Cody Foster & Co. product.  The Flickr stream took on a life of its own; one that helped put human faces to the problem of copyright infringement.artists

People noticed the Flickr account, and artists spoke up; by doing this, artists were taking the significant and serious issue to social media and reclaiming their designs.  Because the cost of going to court can be a hefty and prohibitive sum, social media became a valuable resource for us, who were familiar with blogging and reaching out to other artists for support.  It therefore wasn’t surprising when several artists asked for the collective voice of social media for help. That’s when things really started heating up: upon hearing of Cody Foster’s blatant knock-off business culture, companies immediately and publicly severed ties with Cody Foster & Co, including West Elm, Fab, and Anthropologie.  These larger retailers distanced themselves from Cody Foster, vowing to cease doing business with the infringer.  However, there were others, such as Paper Source and Terrain, who continued to stock Cody Foster & Co. product.  The story continued to spread like wildfire both across social media and news platforms, once reporters discovered the drama unfolding.  Someone even started a “Boycott Cody Foster & Co.” Facebook page!

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When the story went viral the first thing I did was talk to a lawyer.  I was sure I was allowed to speak my opinion and publish the comparison images, but I wanted to make sure I was showing my discoveries without being inflammatory. The backlash against the artists didn’t take long, and, in a disgusting move, the company started blaming the victims and lashing out against those who condemned their behavior.  Phase 1 of the company’s attempt to regain face included a perverted “two wrongs make a right’ approach that also kicked off Operation-We-Did-Nothing-Wrong which apparently snowballed into some interesting conspiracy theory jabber.

Two months after allegations went public I received a sickening letter from Domina Law group on behalf of Cody Foster & Co. The letter threatened to sue me for damages based on my “false” comparisons, and, would you believe it, for copyright infringement! The comparison images I put together were largely wordless, except for properly attributing the original work with the original artist’s name and year of creation alongside an image of the Cody Foster & Co. catalog image which was, at least in my mind, pretty damn

similar. Though I’d asked a few lawyers for their opinion about my actions to make sure they were legal, the letter was upsetting and confusing.  The gall of Cody Foster in accusing me of copyright infringement!  At the risk of being sued, and to avoid putting undue stress on my family, I made the Flickr stream private and then hired Emily Danchuk as my lawyer.  The following day Emily wrote a letter to Brian Jorde, Cody Foster & Co.’s lawyer, with a pretty scathing response.  It’s been three months and there has been no word back from Jorde.

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Now I’m wondering if that letter was simply a way to cover tracks before proceeding with Cody Foster’s phase two of “Operation-We-Did-Nothing-Wrong.”  Towards the end of January 2013, Cody Foster & Co. filed suit against the Urban Outfitters conglomeration for breach of contract, claiming that Urban Outfitters had breached the terms of an agreement by sending product back to Cody Foster.  At first glance their success seemed questionable; Urban Outfitters had the following clause written into their contract at the time orders were placed:

“Company reserves the right to return at Vendor’s expense any merchandise and cancel this contract where a claim is made that the sale by Company infringes any alleged patent, design, trade name, trademark or copyrights. Vendor agrees to indemnify Company and hold it harmless against any and all liability loss or expense, including costs and counsel fees, by reason of any design, patent, trade name, trademark, copyright or unfair competition litigation now existing or hereafter commenced with respect to any or all items covered by this order.”

But as Domina Law explained the suit on their blog, nothing went to court, so Domina Law’s argument seems to be that Cody Foster & Co. is in the clear.

Last year, Urban Outfitters and Anthropologie announced that they would no longer do business with Cody Foster & Co. after hearing infringement claims via social media. No official claim of infringement was ever filed against Cody Foster, which, it’s argued, would have been necessary for the retailers to back out of the deal legitimately. Since no such claims were filed, Jorde says, Cody Foster is entitled to the outstanding balance.

I’d venture to say the artists’ cases against Cody Foster haven’t made it to court simply because the artists wouldn’t be able to afford the legal fees and therefore need to settle out of court. There is online evidence of out-of-court settlement payments by Cody Foster & Co. for at least one design.  The Urban Outfitters conglomerate topped $900 million last year, making it safe to assume they can easily afford the legal fees independent artists can’t.

It will be interesting to see what happens next in this ongoing saga.

 A timeline of  the Cody Foster & Co. Caper



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