Side-by-side comparisons of independent designers’ pins and Zara’s alleged ripoffs (image via ShopArtTheft) (click to enlarge)
A week ago, Los Angeles-based artist Tuesday Bassen posted a photo on Instagram contrasting her original designs for pins and patches with alleged ripoffs sold by Zara, the international clothing brand. The products were nearly identical, featuring heart-shaped lollipops and rubber erasers. Bassen’s post went viral, and now, more than 40 independent artists and designers have come forward accusing Zara of plagiarism.
Among them is Brooklyn-based illustrator Adam Kurtz, a friend of Bassen’s, who was alerted by a fan via Twitter earlier this year that replicas of his designs were being sold at Bershka, a Zara subsidiary. “My own artwork in question is so simplistic that I could barely understand why they even needed to trace it exactly,” Kurtz told Hyperallergic. It was an enamel pin featuring an illustration of a shopping bag with the words “Thank You.” “Had they just drawn a bag, my specific case would have less merit.”
After Kurtz emailed Zara’s customer service about what he saw as art theft, the product was removed from Bershka’s site. It wasn’t until Bassen’s complaint drew widespread attention that he decided to take action against the retailer.
Shop Art Theft, a website launched by Kurtz, offers side-by-side comparisons of independent artist’s designs and Zara’s alleged ripoffs, with links to buy the originals. A call to boycott Zara, led by Kurtz, has also begun to take off.
“Shop Art Theft was my way of trying to turn a negative situation on its head a little bit,” Kurtz says. “Obviously, I wanted to create a resource where people could draw their own conclusions, and at first there were only 12 artworks in question. Creating a central resource ended up helping other artists either feel confident saying anything—nobody really wants to be seen whining to their existing followers—or just a call to action to check ZARA sites for more cases.” After he launched the site, more artists contacted Kurtz saying Zara had ripped off their designs. The number of allegedly plagiarized designs has almost quadrupled.
“We were all surprised to find that our creative work was suddenly all over Zara product,” Kurtz wrote in a statement on the website. “Our original art has been reproduced as pin and patch sets, embroidered decals and prints on apparel. Though some of the themes maybe be simple shapes or icons, Zara’s replications are near-identical, and the massive scale of this theft from a tight-knit creative scene implies a conscious choice by Zara, Bershka, Pull&Bear, Stradivarius and the parent company Inditex to not bother making significant modifications.”
After being alerted by fans via email and social media of Zara’s apparent ripoffs, Bassen hired a lawyer to challenge the intellectual property theft, and sent a cease-and-desist letter to the retailer. The company’s legal response has also attracted widespread attention:
The lack of distinctiveness of your client’s purported designs makes it very hard to see how a significant part of the population anywhere in the world would associate the signs with Tuesday Bassen. This is our firm view, and being fully aware of the 3rd party notifications that you have brought to our attention. In this last regard, please not [sic] that such notifications amount to a handful of complaints only; when it is borne in mind that millions of users worldwide visit the respective websites monthly (Zara: 98,000,000 average monthly visits last year, Bershka: 15,000,000 average monthly visits last year), the figures clearly put those few notifications into sharp perspective.
While Kurtz’s sales have increased a bit since the launch of ShopArtTheft, he’s more comforted by the comments, notes, and emails coming from fans and other artists who empathize. “When this happens you just kind of feel like shit, and it makes you question why you’re sharing your work and making it so easy to steal,” Kurtz says. “The immediate support was immediately grounding, like ‘no, don’t be ridiculous, this is on Zara, not you.’ Other working creatives and small business owners who have experienced similar situations have reached out to thank us for working so hard to draw attention to this.”
The artists involved are taking steps toward legal action against Zara. “I’m personally hoping [our case] becomes a landmark example of really small-scale independent artists banding together to stand up to a major retailer,” Kurtz says. “It’s definitely a blight on Zara’s history as a company that will be mentioned in any similar cases, just as Kanye and Louboutin have been referenced in relation to ours.”
Since the launch of Shop Art Theft, Zara has apparently changed its stance toward the accusations. In a statement to The Cut, Inditex, Zara’s parent company and the world’s largest apparel retailer, wrote:
Inditex has the utmost respect for the individual creativity of all artists and designers and takes all claims concerning third party intellectual property rights very seriously. Inditex was recently contacted by the lawyers of artist Tuesday Bassen who noted the use of illustrations in some badges sourced externally and on clothes in its Group stores. The company immediately opened an investigation into the matter and suspended the relevant items from sale. Inditex’s legal team is also in contact with Tuesday Bassen’s lawyers to clarify and resolve the situation as swiftly as possible. We are also currently investigating other allegations of illustrations used on badges provided by external suppliers on a case by case basis.
The number of artists alleging plagiarism is high, but some find strength in those numbers. “There is a sort of sick comfort in being ripped off along with so many friends and peers,” Kurtz says, “because now we all get to navigate this shit together.”
hope the artists copyrighted their work beforehand so that they can seek maximum damages. Otherwise, they won’t.
There is no need to “copyright” work.
Under US and European intellectual property laws, all original works of art belong to their creator (aka. the author) from the moment of creation. The author has exclusive rights (including the rights to reproduce and repurpose, aka. “copyrights”) to said work in their lifetime and for a given time after their death (how long varies somewhat by country).
In the US, an author can choose to register individual works in a registry, but this is not required and grants no explicit extra protections. It only makes it slightly easier to dismiss a limited range of legal defences in the event that the author has to take legal action against someone that infringes on the work.
If these artists created the original work, they can pursue damages, as well as fixed compensation for each infringement.
You’re wrong.
The United States copyright laws are entirely different than the European, Canadian, and any other country so it is wrong to bunch them together. Art is automatically copyrighted by the creator, but believing that no further action is necessary in terms of formally registering it with the United States Copyright Office can be quite a costly mistake. The artist mentioned in the article presumably did not register her work, therefore she won’t be fully financially successful. It’s not difficult to get your stolen work taken down, but wouldn’t you want to be compensated because of it???
“If you have not formally registered your art prior to the infringement with the US, you are limited to the infringer’s profits as your damages. For example, if an infringer prints your art on T-shirts, sells 500 of them and makes a clear profit of $10 per shirt, you’re limited to that $5000 profit as the amount that you can recover (if that $5000 profit is before costs, your limitation will be even less– whatever profit remains after subtracting all costs of production). If on the other hand, you have registered the art, you are entitled to “statutory damages” of up to $150,000 per willful infringement, and you can elect to take that instead of actual damages (a clear choice in our hypothetical T-shirt example). Statutory damages are punitive in nature, but only available as an option to you if you register the art before the infringement….If a work of your art is infringed on and it’s not registered, you have to go ahead and register it anyway before you can bring a copyright action in federal court (file a federal case). Without a filed copyright, even if you win damages for the infringement of your art, the court will not award attorney’s fees.-MJ Bogatin, intellectual property attorney with emphasis on arts and entertainment. “Copyright Registration Law and Your Art” http://www.Artbusiness.com
Hopefully that cleared up some of the confusion concerning the difference between not registering and registering work.
If you are not interested in making money from having your work stolen, then don’t register your work. Also, if your art doesn’t hold any commercial appeal or isn’t worth stealing, there really isn’t any point to going through the process.
Please Google copyright laws concerning artists and why it is so imperative to do so. Also please check out http://asmp.org/
It appears you are correct, there has been legal precedent set since I lived and worked in the states that does prohibit seeking attorney’s fees and statutory damages in the US federal court for instances of infringement happening prior to registration, and requiring registration before filing a federal lawsuit.
However, considering the size of Zara’s business (these pin sets were likely produced in runs of tens of thousands, being sold at $15 a piece), actual damages are likely higher than statutory judgements in this case… and those are not limited to infringements that take place post-registering. They can register, file suit, and be awarded damages.
And if they decide that a statutory judgement is likely higher than actual damages, I suppose they can just file suit in Spain, where Zara is based, since there are no requirements for registration to file for statutory damages there. :p
EDIT: it is worth noting that the differences between the US and Europe are relatively minor, most western countries (including the US) are formally bound by international IP conventions. In fact, there is a strong argument to be made that the above limitations on certain legal recourses, unless authors pay for registration, means the US is failing to live up to its commitment to the Berne convention.
hope the artists copyrighted their work beforehand so that they can seek maximum damages. Otherwise, they won’t.
The idea that artists would have to spend the time and money to register 1000’s of artworks over their life is physically preposterous and biases everything toward the 1%’s selfishness. In the 70’s and 80’s wen i studied these issues to inform myself the law seemed much stronger. As usual the neoliberals have gremlined copyright as a weapon for themselves while an impossible ladder to climb for the 99% of artists.
The Graphic Artists Guild recently posted this that may help…
https://graphicartistsguild.org/news/copyright-claims-board
http://www.ppa.com/files/pdfs/VisualAssociationsSmallClaimsTribunalPaper.pdf
http://copyrightdefense.com/action
in a truly democratic free society, one wished upon by the far left, no artist would truly own their own work. The work of the artist would be open to all those who wished to use it for whatever means necessary thus eliminating the need to pay the artist. It’s quintessentially a liberal standpoint. The idea of capitalism and working hard for the rights to own the work created by the artist is essentially a conservative standpoint. The work created by the artist should belong to the artist and if others want to use then they must pay the artist is a right wing stance.
I’m neither far left nor far right and totally sway on a lot of political issues, but believing that the work I created as an artist can be monetized by anyone and I don’t receive anything is a very far left wing idea. Screw that, I want to make money from my art, not better society because of it. By formally registering my photography it has greatly benefited me financially. And I had to learn the hard way that if you don’t go by the laws of copyright, you’re not going to win and you’re not going to get a big enough reward.
So do what you want, I’m making art to make money when the days done, that’s why I can solely depend upon it as my job.
im sorry that paying a little fee to register your art work is an inconvenience. This country is built on inconveniences, especially when it comes to the law. But there is hope. You will win the case against someone blatantly stealing your work but don’t expect to get fully compensated. That seems to be the case with many things. Always read the fine print(life is not fair).
A “little fee” can add up pretty quick, or are do you not know your basic math?
Honestly, bud, who the hades do you work for that you have such a cavalier attitude about all this? Are you some sort of Zara troll?
not sure to what extent you’re describing me as being cavalier or the basic math you are referring to.
a quick glance at the comments section has pretty much told you that i take this pretty seriously. i’m an artist, a photographer and have found out the hard way that in order to fight someone who has stolen my work i could go about it two ways. Paying a very small amount as compared to the sums that i have not only invested in my years of creating art work, and also the amount of earnings I have won due to registering copyrights is phenomenal. Or doing nothing. Think of it as investing in your future, an insurance and no one likes to pay that stuff.
Zara is wrong. I never in any comment defended Zara in any way. You assume because I am telling you how to make money and fight Zara correctly, the right way which might mean some extra legwork and some expense, that I’m somehow a Zara employee?? They have better attorneys on their side, not what is righteous. In some way I’ve been screaming at everyone how to go about things the right way. Granted I’m not as articulate, but I’m telling you and other artists that there is a system to be researched, used correctly, and profited from!! Go to the top comment and look at how eloquently Kathryn Goldman laid it out!!!!!!!!
There was a point, where I got burned by someone else who took my work and made their own money off it. I was really upset, and had to learn the hard way that what I created isn’t magically mine to keep in some fairytale land. I had to pay the United States government money, multiple times to secure my work as a COPYRIGHTED AND LEGALLY PROTECTED PIECE OF WORK. It sucked to pay and do all the work on their crummy website and calling the bureau and being on hold for hours at a time trying to get answers of how the process works. Because, if you mess one tiny little detail on the claim, the copyright claim, an attorney later can pick it out and ruin the whole thing. Money and time wasted! So I learned the hard way. Then finding an attorney is not fun, then going through the trial is not fun. But when a judge, sometimes years later awards you a very large sum amount for some stolen photos that were plucked from Flickr. Then, then it’s worth it. Now I’m going after old stuff, and creating new work, copyrighting, and posting all over the web hoping someone steals it. While on the front line I’m going after clients, new gigs, and galleries. That’s the whole point of this……to make money from my work. Artwork.
I’m not to the point as Kathryn Goldman but I’ll bite on a silly comment about my math skills. This isn’t a photography site, those people know business. Go to http://www.petapixel.com and look at the stories on Amazon and Getty. Go to the comments section there and you’ll see a different tune about copyright.
a point earlier I made was that photographers act differently than artists. If you’re not creating a commercial piece of art, then who cares what happens to it, no one will steal it. Interpretations and technique I have no idea about!!! it’s much easier to distinguish about a stolen photo than artwork. I have no idea about that……and I’m glad.
The worst part is this. I think at some point upon learning all about copyright law, you become frustrated at yourself for not wanting to know more about it. It’s that ignorance that keeps you in a little cave believing nothing bad or nothing good can ever come from going outside the studio into the world of laws and government with your work. I wished to hell I had an entire class on this stuff, and I’m photo, in undergrad and grad. But it’s some closed secret in the art world for some reason. It only pops up in these cases….when artists are on the ropes.
Good for you though. keep believing your ownership fantasies and sticking it to the Man. So, when a company steals your work, I’m sure it will make for some good likes on Instagram, maybe a mention on a popular art site. That will be really cool yo. You can get mad likes and hearts outta that.
Just Goggle stuff. Seriously, You’re like already at a computer or on a phone, it’s like a short thumb movement or two.
Romanium wrote,” If you have not formally registered your art prior to the infringement with the US, you are limited to the infringer’s profits as your damages.”
That’s not fully correct. See 17 USC §§ 504-505. To reserve your right to pursue (enhanced) statutory (money) damages (US$750-US$30K and up to US$150K for willful infringement) and the potential to pursue attorney fees & legal costs against the copyright infringer, the artist must register the work BEFORE the infringement (un/published status) occurs or WITHIN three-months of its first-publication. If you miss those two “timely windows of registrations, you’re only eligible for actual damages (typically what you would have licensed/sold the art for had the infringer contacted you) AND the disgorgement of profits, if any(!), from the unlicensed usage of the artwork. An un-timely USA copyright registration will protect your artwork from infringements going forward.
Romanium wrote, “hope the artists copyrighted their work beforehand so that they can seek maximum damages”
The correct term is “REGISTERED their work” rather than “copyrighted [or copyrighting] their work”!
When you copyright, you registered a claim, when you register, you’re copyrighting. It’s a semantic game at best. That 3 month window is upon publication. So if you put it on Instagram or flicker, someone nicks it, and you see it 4 months later on their site….well no dice. Putting work on Internet is publishing. Best to create work, save some up, register a claim for several months worth, pay fee, and bam, you’ve copyrighted all that work. Now you can sit back and let others steal your stuff, then go after them.
Does this mean that if I want my work to be freely available to all, I have to copyright it to prevent someone else from copyrighting it and then restricting its distribution?
No one else can copyright your work. That doesn’t stop people from using and distributing your work if it’s copyrighted or not. Copyright doesn’t restrict distribution necessarily although in theory it should.
If you’re interested in seeing where your work goes if you’ve already published it to the Internet, there are sites with better reverse image searches than Google. For starters, http://www.pixsy.com will list all the places your image has been used including foreign countries. You can use their free service to start your own cases and send takedown notices. I think you can pay them to do it for you as well, but it’s both enlightening as well as horrifying to see your own work all over the Internet. Honestly, I would upload your work there to see if anyone is even interested in stealing it to begin with. It really sucks to find out some knucklehead had been using my image on Photobucket and making coffee mugs to make money off, but I was able to go through the proper channels and walk away more than happy since it was an image that had already been copyrighted.
I don’t mind people using my work, and my web site specifically states that. However, I have heard of several cases where people have been sued for displaying, selling, or giving away their own work by other people claiming to own it. There was very recently a case involving Getty you may know about. That would annoy me quite a bit. But lifting doesn’t — people have been lifting my work for fifty years. I take it as a compliment.
Romanium wrote, “When you copyright, you registered a claim,
when you register, you’re copyrighting. It’s a semantic game at best.”
It’s not semantic, and what you’ve written is incorrect. There’s a clear distinction between creating a copyright-protected work (affixing an original work of authorship on to a tangible medium of expression) vs. registering that automatic copyright with the US Copyright Office. The top lawyer at the US Copyright Office is Maria Pallante; along with being the Director of the US Copyright Office, Ms Pallante is also the Register of Copyrights (not the register of copyrighting). After submitting your copyright registration application form, its deposit/s (work/s being registered), and its application filing fee, the Copyright Office will issue the author/photographer a Certificate of Registration (and not a Certificate of Copyrighting). Using the term copyrighting to describe the registration process is incorrect and can be confusing to creatives learning about US copyright law and its process to timely register their copyright claims.
Romanium wrote, “Putting work on Internet is publishing.”
That’s not fully correct, and it’s a mistake to make such a broad
statement on what constitutes “publication” on the Internet. The statutory definition of “publication” (17 USC 101) comes from the 1976 Copyright Act and was promulgated before the inventions of VCRs, the Internet, social/electronic/digital media, etc. The term “publication” typically dealt with printed materials, like newspapers, magazines, and books that were distributed, sold, or licensed to the public.
Reading the Copyright Act (17 USC § 101 or
http://www.copyright.gov/circs/circ01.pdf#page=3
“‘Publication’ is the distribution of copies or phonorecords [like CDs, cassette tapes, etc.] of a work to the public by sale or other transfer of ownership, or by rental, lease [licensing], or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution [sharing], public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.”
From the statute’s last sentence, if you only place (“display”) an artwork/photograph (a work) in a gallery and not make copies or distribute it to others, then the work is likely un-published. Similarly, if you place a work on your website for the sole purpose of “displaying” and showing your work to others, the work is likely un-published. On the other hand, if you post your work on-line for the purposed of licensing, selling, or sharing/distributing it, then it is likely been published. If your posted work includes social media sharing icons or links like Facebook, Instagram, Creative Commons, etc., then the work has likely been published since the artist/photographer is authorizing sharing/distribution of the work through those platforms.
Rob Kasunic, Director of Registration Policy and Practices at the United States Copyright Office, writes,
“The determination of publication is based on the authorization of the copyright owner. If the photographer posted the image solely for the purpose of public display, in itself, that would not constitute publication. If any copies of the image were distributed with the photographer’s authorization either by sale or other transfer of ownership, or by rental, lease, or lending, those copies could be considered published.”
(http://copyrightalliance.org/node/1612#.V6hWCaI0Hfs)
Romanium wrote, “Best to create work, save some up, register
a claim for several months worth…”
I agree with Romanium’s “un-publish group works registration”
strategy; however, his explanation is not clear: Best practice is to register your works as un-published (before publication; before licensing/selling them; before displaying/sharing them on web or social media sites; and before making copies to distribute
either free or as paid). Using the Copyright Office’s eCO (the on-line registration procedure) vs. mailing in paperform applications
http://www.copyright.gov/eco/eco-tutorial-standard.pdf, you can
group-register an unlimited number of un-published works (Visual Arts; Literary; Performing Arts; etc.) in one “Standard Application” at $55 total price (you cannot mix published and un-published works in the same registration application). It’s best to also provide
an individual title for each registered work you’re registering in your
Standard Application as a “content title”. Also see http://www.copyright.gov/fls/sl04s.pdf
Wow, that definitely took some time out of your day. Good job, thanks!
What never ceases to amaze me is some people’s complete ignorance of how interconnected our virtual world is now. Did this company seriously think that no one would notice? That they could run a scam this huge and just quietly sneak it in under the radar because the artists would never, ever find out?
In its first response to the cease and desist letter from Bassen, Zara accuses her of not creating art that is distinctive. “Distinctiveness” is a trademark concept, not a copyright concept. The standard here is whether the art has a “modicum of creativity” and it clearly does. Zara engaged in legalese smokescreen intimidation.
Also, instant protection is the biggest lie in copyright and I’m glad that other commenters have pointed that out. Copyright registration is the the best strategy for a successful career for US artists and artists who make a living by selling their work in the US.