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.
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.
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!
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.
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
- December 5, 2007 I sold an item through etsy to Alchemy. Since the user name can be confusing (etsy had a tool in place also named Alchemy for buyers to contact makers for custom orders), this buyer used the email address email@example.com, and purchases were shipped to Andrea Andre (sister to Cody Foster, employee of Cody Foster & Co.),113 Meadow Lake Rd.,Valentine, Nebraska 69201,United States.
- December 30, 2009 I was contacted by fellow etsy seller (Fern Animals) letting me know we had a customer in common and that customer was responsible for allegedly mass producing her design. The buyer was an etsy user named Alchemy. Upon further research, I learned Alchemy joined etsy November 15, 2006 and has since purchased 543 items through etsy sellers. At that time I found record that Andrea Andre had purchased from Heather Knight (Element Clay Studio), Danna Ray (Groundwork), Denise Thompson (Blackberry Downs), C Rougerie (Debeaux Souvenirs), Helle Jorgenson (Gooseflesh), Julianna Swaney (Oh My Cavalier), Allyson Melberg Taylor, Kim Van Munching (Little Miss Acorn), Shauna Alterio and Stephen Loidolt (Something’s Hiding in Here), and Johanna Anderes (12fifteen). This list is incomplete and simply includes the names of artists and crafters I knew or was familiar with.
- October 3, 2009 Fern Animals posted about finding her design mass produced and sold through a large retailer.
- December 6, 2010 Real Simple magazine published an image of pinecone ornaments by Cody Foster. The ornaments were allegedly directly based on color scheme and material choices of those made by Stephanie Congdon Barnes (see comments).
- December 8, 2010 I blogged about Cody Foster & Co.
- December 9, 2012 Omaha.com publishes that Cody Foster & Co is now profits around $3 million annually.
- October 15, 2013 IP isn’t free opened flickr stream documenting CF wares beside those of independent artists.
- October 16, 2013 Abigail Brown documents her experience.
- October 17, 2013 West Elm cancelled orders with Cody Foster & Co., as does Orange and Pear.
- October 19, 2013 Mimi Kirchner blogs about Cody Foster & Co’s similarities to her lumberjacks.
- October 18, 2013 Fab ceases business with Cody Foster & Co.
- October 19, 2013 2 online articles published with intent to smear Congdon’s reputation.
- October 24, 2013 Anthropologie severed ties with Cody Foster & Co.
- October 26, 2013 Vintage by Crystal documents the experience and cites examples of her work as well as that of others, such as Mimi Kirchner’s owls.
- November 5, 2013 Cody Foster & Co respond to accusations through news outlets 1, 2
- November 20, 2013 Cassandra Smith blogs about her designs as seen in the Cody Foster & Co catalog.
- December 10, 2013 House of Moss received payment, refused Confidentiality and Nondisparagement clause and blogged about payment.
- December 19, 2013 IP isn’t free received lawsuit threat from Cody Foster & Co via Domina Law, hides photostream from public.
- January 21, 2014 Snowbound Ornament by Cody Foster & Co documented as similar to that of Mimi Kirchner’s Tiny World series.
- January 31, 2014 Cody Foster & Co filed a lawsuit against Urban Outfitters et al for Breach of Contract.
- March 5, 2014 Cody Foster & Co offer to settle with Cassandra Smith for $650 and Confidentiality and Nondisparagement clause; FastCo article comments include one by a Cody Foster & Co. employee Larry Buller in an attempt to smear the reputation of artist Cassandra Smith.
- March 20, 2014: Domina Law lawyer Brian Jorde blogs about the UO/Anthro lawsuit.