Monday, October 21, 2013

Copyright for Artists - Congdon vs Cody Foster

We seem to be seeing more and more stories of large companies who are "ripping off" independents in terms of alleged copyright infringement.

What we're also seeing is the power of the Internet as their actions are being "outed" online.

[Revised and updated: 26 July 2016]

Image for my
Copyright for Artists webpage
But is it all as clear cut as some of the stories would suggest?

Below are links to what is apparently another horror story of alleged copyright infringement which has been featured in a big way on Facebook and Twitter.

The claim by the artist is that there has been a wholesale rip-off (literally) of an artist's art by a commercial company which operates wholesale across the USA. However this is a story with a very big twist!! Do read through to the end to 'get it'.

Plus at the end there are some resources which you may find useful if you need help with copyright as it relates to artists - and some of the not so nice things that can happen from time to time.

Lisa Congdon - Art + Illustration

Images used in Lisa Congdon's blog post

My Art Was Stolen for Profit (and How You Can Help) was posted on Wednesday 16th October 2013 by artist and illustrator Lisa Congdon (Today is going to be awesome). [Update - It's now been shared in Facebook 245,000 times and 23.5k on Twitter]

She names the company involved as wholesale company Cody Foster & Co. who she alleges copied her original work for use on holiday ornaments in their 2013 catalogs. This is company which also started out as a very small independent craft company

On the face of it Lisa Congdon's images looked very persuasive to me. As indeed they did to many others.

This is what she had to say about the use of images.
"In the world of art & illustration, you can use the artwork of artists on your products as long as you ask permission, sign a licensing agreement with the artist, and agree to compensate them. I sell my images to companies all the time, companies who ask my permission and compensate me for my intellectual property. In this case, I was never contacted, asked permission or paid. That is called copying. It’s also called stealing." 
Lisa Congdon
This is no newbie, her Facebook Page Lisa Congdon Art + Illustration has over 12k likes - doubtless some generated as a result of the above post

As a result of a tweet by the artist, on October 17th, a firm called West Elm pulled all the Cody Foster products they were stocking from their stores - and wrote about what they'd done in We Love Authenticity

The story also got repeated by:

Another perspective - by Brian Sherwin


Interestingly, I then found these two posts - on EXACTLY THE SAME TOPIC by Brian Sherwin on The Art Edge with Brian Sherwin.  
Brian's posts are now the subject of a four page thread on Etsy - Interesting article regarding those recent copyright allegations.


Since then Ms Congdon has gone very quiet on the whole topic.  She hasn't responded to Mr Sherwin's questions about any alleged use she may have made of photographs subject to copyright or other conditions of use.  There again she indicates she is all "lawyered up" and lawyers generally don't like their clients debating the merits of their cases in public if they intend to pursue a legal claim.

Yet another perspective



It's also apparent that if you are an artist and make allegations which rebound on you that somebody will make some art as a result!

Such as this little animation which focuses on the use of one particular photograph.

What do I think?


I think all artists should have a good working understanding of copyright law. This includes how this applies to their own use of images produced by other people.

I think all those who produce retail goods should be aware that if they appear to use the work of photographers, artists or any other creative craftspeople without permission, recompense or recognition that the full wrath of the artistic community will be visited upon them via the Internet.

I think ethical retailers should only deal with those who always respect the rights of copyright owners - irrespective of whether they are photographers, artists or craftspeople.

Plus - it's often a very a good idea to listen to both sides of the story relating to an allegation.

I think lawyers can make a great deal of money from artists and retailers who don't "do the right thing".  Arbitration and conciliation services are often a very good alternative if you have a dispute.

As I understand it:
  • derivative art has no claim as to copyright.  To have a claim on copyright your artwork needs to be wholly original and capable in law of being able to assert copyright. Typically this means using your own reference photos as well as your own designs.  
  • you cannot copyright an idea or nature (see my earlier post You cannot copyright nature which references legal opinion on this topic). You can only copyright those elements which you 'own' i.e. the artistic elements of the work which you created.  It's difficult to understand how anybody can lay claim to folk art traditions.
I think the whole situation is very possibly neatly summed up by somebody who posted on Lisa's Facebook page as follows
Looks like a round about who took whos work. Photographer takes the photo, illustrator draws the photo and adds a folklore flourish, and a company makes ornaments of the illustrators drawings.

Anybody care to comment on this topic and or cite other cases?  Please be careful as to how you phrase your comments - the artist concerned insists she is all lawyered up - and I guess Cody Foster & Co. is doing likewise.

[UPDATE] The most recent court case relating to the "fair use" defence relating to appropriated imagery is the Cariou vs Prince case which relates to Richard Prince's manipulation of photographs taken by Patrick Cariou. The first Court found for Cariou, the Appeals Court found for Prince in relation to most but not all of the appropriated photographs.  The current situation is that on August 27, 2013, a petition for a writ of certiorari was docketed by the U.S. Supreme Court in Cariou v. Prince.

I gather from Petition for Writ of Certiorari Filed with Supreme Court Seeks Reversal of Second Circuit’s Cariou Decision (7.10.13) that the argument is, in part, that the writ of certiorari should be granted because

[t]he Second Circuit’s decision, by giving dispositive significance to whether potentially-infringing secondary works may “reasonably be perceived” as being “transformative” based solely on the aesthetic sensibilities of the particular judges observing the works – and without regard to the secondary user’s testimony that he had no reason for appropriating those particular copyrighted works (as opposed to ubiquitously available equivalent materials) – offers neither predictability nor guidance to copyright owners or secondary users (or their counsel), or to lower courts seeking to apply this vague and unworkable standard.]

This petition arises because the three Judges reviewing the case ruled in April (based on US court rules in favour of Richard Prince in copyright appeal) that the doctrine of "fair use" applies given that
  • the new artworks “have a different character” 
  • the new artworks “employ new aesthetics with creative and communicative results distinct form Cariou’s
Essentially in their opinion, it all boils down to what a reasonable observer might conclude when looking at both sets of images. Does a reasonable observer, knowing nothing of the artist's intent, conclude that they are transformed because they are materially different by reason of character, expression and aesthetics.
“Rather than confining our inquiry to Prince’s explanations of his artworks, we instead examine how the artworks may ‘reasonably be perceived’ in order to assess their transformative nature,” Judge Parker
One begins to see why the rallying of observations by sundry "reasonable observers" might make sense if you wanted to pursue a legal case.

RESOURCES: Copyright, Intellectual Property & Orphan Works


Plus how to find your stolen images on the Internet!


Copyright infringements are very likely to occur when there's a conflict between big business, the individual originator - and people who try to steal images without paying.

I've developed a section on my Art Business Info for Artists website which is designed to help artists to:
  • keep on the right side of the law
  • protect their images 
  • find their images if they've been stolen
  • exercise their copyright and make sure that thieves either take down or pay up!
Copyright for Artists - Do you want to know more about how to protect your artwork on the internet or what to do if somebody steals your art? Do you need an introduction to copyright for artists in a global marketplace where not all countries operate copyright law in exactly the same way?
How to do a reverse image search What is a reverse image search? How do you find who's stolen your art for their website? How do you find the source of an image you want to use?

Blogs post about Copyright on this blog

14 comments:

Roger Brown My Botswana Art said...

Great article.I think the crux of the matter boils down to what you said (To have a claim on copyright your artwork needs to be wholly original and capable in law of being able to assert copyright. Typically this means using your own reference photos as well as your own designs.)I also agree with what Brian Sherwin had to say(I'm all for artists championing copyright. BUT if you are going to champion it... you MUST play by the same rules.)

Dain Q. Gore said...

We seem to have entered an era where the sensational "viral" nature of the story precedes the facts, thereby determining an outcome before anything more than an anecdotal case is made.

Katherine Tyrrell said...

We've always had artists who have helped out when an artist has had their work stolen.

It's not normally as commercially oriented as this example.

Plus artists tend to go public in terms EITHER asking for help in how to tackle a problem OR after they've had an exchange with the site owner and ask them to take the images down because they infringe copyright - and got no response. That's normally the point at which it goes public.

In this instance an allegation was made about this and alleged similar instances - for which no real proof was produced. It then instantly became a viral storm.

I actually find it pretty scary. This is getting close to judge, jury and execution - all on the basis of a blog post. I have certainly never ever seen a case where an alleged infringement got anywhere close to 250,000 shares on Facebook or resulted in stores ending their connection to a supplier on the basis of a blog post.

What was ironic was when somebody dug a bit deeper and it began to appear that there was scope for thinking there might be more than one alleged case of copyright infringement.

I don't think we've yet got all the facts. I think this is a story - and a rather frightening one at that.

If it goes to court I don't think anybody could call it right now as to who would win and/or get the most damages.

I'm reporting it because - bottom line - this is highly relevant to artists and all visual artists. It all relates to copyright and the appropriation of images - whether these are photographs or paintings.

For me it comprehensively demonstrates why it is absolutely essential for artists to acquire a good working knowledge of copyright law - and to know the standards they must achieve to be able to bring a claim of alleged copyright infringement, how best to do that and what to do if the other artist or company fail to respond appropriately.

It's even more vital for the US government or its judges to provide better guidance on the "fair use" defence with respect to appropriation than "I know it when I see it" (see my blog post for this reference re Cariou vs Prince).

Based on this case there's rather a lot of evidence of what can happen if that's the sole basis for a judgement. Plus who is best placed to judge? Is it the "public" based on a blog post with very small images or is it a court of law who have access to all relevant facts and can examine the images / products in question.

Linda Warner Constantino said...

I too have had my copyrighted illustrations infringed by a very large reputable company. I cannot not talk about it because it is settled and I came out of it ok. But I was shocked at how blatant it was. I fault the cavalier judgement of the art direct who clearly should have known better.
I love this line that my lawyer daughter penned in one of my early letters to the infrginger:
"The copying and use of these images without my permission and with no compensation to me is copyright infringement. It has also resulted in(un-named large company) being unjustifiably enriched at my expense.
It was draining to fight this infringement but I could not live with myself if I did not.
You do have to assess and understand what kind of fight you may have before you, so you are prepared. Fortunately (in the US) I had registered my copyrights and it served to intimidate.

Katherine Tyrrell said...

I'm sorry you had to go through this too.

Just a thought - but I wonder if this sort of thing will continue until we reach a point where maybe artists have to resist the agreement not to name and shame companies who do this.

If they infringe they're still legally obliged to recompense you.

Or maybe make them jump through more hoops to refrain from naming and shaming?

JafaBrit's Art said...

I am currently fighting a uk company that stole one of my images and used for mass marketing campaign. They told my lawyer they "found it on the internet" and "most artists would be happy a company wanted to use their work" (I wasn't asked, payed or credited).

It seems more and more major companies are doing this and getting away with it :(

As for this case and the viral nature of the story, it is inspiring conversation which is a good thing in itself.

al the best corrine

Cindy Schnackel said...

I've seen a surge in infringement in general, including more instances of large well known companies doing it, over the past couple of years. Sadly, it's partly that we have a culture now of greed, and cheating. Jobs that used to be done by skilled, knowledgeable people are being outsourced, and taking images from social media instead of buying them from their owners, is becoming common. It's a shortcut to save money but at our expense.

Also, I don't believe it's merely coincidence that the last couple of years have seen the invention of more 'sharing' sites that have very poor models that encourage infringement.

Even some search engines now offer a large image that is easy to copy without even going to the owner's site. One even adds a Pinit button, bypassing many artists no-pin code.

Instead of the myth--that everything online is free (public domain)--dying, it has been given new life by sharing sites and search engines. Bing even adds a pinit button, bypassing owners no-pin codes.

Many people who know better, (or have no excuse not to know better), are using "found it on Google/Pinterest/etc" as their defense. I'd love to hear a judge explain to them what the law really is! I've had to send DMCA takedowns for infringements by art teachers who don't have a clue what the law is. One was giving my (and other people's) art away to Creative Commons!

Bill Harrison said...

Roger Brown said "To have a claim on copyright your artwork needs to be wholly original and capable in law of being able to assert copyright. Typically this means using your own reference photos..."

Actually, Roger, it isn't necessary to use your own photos in order to be able to assert a copyright. As long as you are legally using a third-party photo (i.e., one you have licensed) you can still claim copyright protection for your work.

Think of hip-hop and rap songs that "sample" music by other artist. Reputable musicians obtain a license from the other songwriter to include a portion of their song in the new work, and yet the musician still retains a complete copyright to his new musical creation.

I work from photos that are often taken by other people. I always obtain a license from them to use them as reference. Once I've completed my drawing, I have a totally enforceable copyright on the drawing.

Bill Harrison said...

Roger Brown said "To have a claim on copyright your artwork needs to be wholly original and capable in law of being able to assert copyright. Typically this means using your own reference photos..."

Actually, Roger, it isn't necessary to use your own photos in order to be able to assert a copyright. As long as you are legally using a third-party photo (i.e., one you have licensed) you can still claim copyright protection for your work.

Think of hip-hop and rap songs that "sample" music by other artist. Reputable musicians obtain a license from the other songwriter to include a portion of their song in the new work, and yet the musician still retains a complete copyright to his new musical creation.

I work from photos that are often taken by other people. I always obtain a license from them to use them as reference. Once I've completed my drawing, I have a totally enforceable copyright on the drawing.

Katherine Tyrrell said...

Thanks for the clarification Bill - that's an important point

It's the permission and proper payment to use which is so important!

Laura Pond said...

Afriend of mine was at The Gap store recently and told me that they had an advertisement with their name on it where the background was similar to a drawing of mine. Since I did not file for copyright protection with the US Copyright Office I could not enforce the copyright. Now I file copyrights on everything I create. You can have several drawings copyrighted in a group to save money on the fees.

Katherine Tyrrell said...

I think the message about lodging a copyright which covers several works of art is certainly a mess age which is worth sharing around.

You should come and live in Europe - we don't need to register copyright!

David J. Teter said...

I think It used to be true here in the US you had to file a copyright in order to protect your work (and legally use the copyright symbol). I looked into it and if I remember it had changed to the same as in Europe and the UK.

The problem was it was a complicated process and, with the fees, would get very expensive and time consuming so it was changed.
The issue was/is if you do register a copyright for your (every bit of) work you produce you will have an easier time should it ever go to court.

I hope I interpreted it correctly. I can't imagine (we) having to register EVERYTHING we do, every small drawing, sketch, sketchbook page, doodle etc we publish to our blog, website, facebook page etc.

JafaBrit's Art said...

David, I was astonished to find even a few of my doodles from my sketchbook that I posted on my blog had been taken and used for album covers. It never occurred to me I should register my sketchbook pages with the copyright office sigh!

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