Thursday, January 9, 2014

Nasty Gal Rip-Off: See How One Company Responds to Copyright Theft Allegations

By Sam Levin
Thu, Jan 9, 2014 at 10:27 AM

What happens when independent artists discover that major retailers are selling blatant knockoffs of their works? That's one of the central questions I explore in this week's cover story on corporate copyright theft, which chronicles the experiences of visual artists in the Bay Area and around the country who have had their work stolen for profit. You can see a sampling of these rip-offs here.

One of the biggest challenges for independent artists, many who work full-time to handcraft and sell their original products, is that it can be very difficult, if not impossible, to take legal action against a large corporation. Jamie Spinello, a jewelry designer and former Oakland resident who now lives in Austin, recently experienced this hardship firsthand when she corresponded with four companies that were all selling knockoffs of her designs. Her attorney Emily Danchuk, who is in the process of launching an association called Copyright Collaborative, shared with me one of the most egregious responses from a company profiting from Spinello's design. I've published excerpts of the exchange below, which offers an insight into the sometimes very frustrating responses from corporations accused of theft.

The alleged offender in this case is Nasty Gal, the "a global online destination for fashion-forward, free-thinking girls." The company, based in Los Angeles, markets itself this way: "Our shop is stocked weekly with both handpicked vintage and a highly curated selection of up-and-coming designers, giving you not just what the fashion doctor ordered, but truly unique items that can't be found elsewhere."

Here is Spinello's original necklace:

Jamie_Spinello_necklace_original__credit_-_jamiespinello.com.jpg
  • Courtesy of Jamie Spinello / jamiespinello.com

And the Nasty Gal knockoff:

jamie_spinello_knock-off__nasty_gal_screenshot.png
  • via nastygal.com

A closeup of that rip-off screenshot:

jamie_spinello__nasty_gal_rip-off_1.png
  • via nastygal.com

Danchuk sent Nasty Gal a cease-and-desist letter in November informing the company that its "Light Angle Necklace" was an infringement of Spinello's "Art Deco Revival Necklace" original, created in 2012. She requested that Nasty Gal immediately cease promotion, marketing, sale, and distribution of the product and that it provide information regarding the source of the infringement and the sales of the necklace.

Pooja Teckchandani, senior counsel with Nasty Gal, responded five days later, saying it was not responsible for the infringement and that Spinello should stop making this accusation on her Facebook page:

Hi Ms. Danchuk,

I am in house counsel at Nasty Gal Inc., and I received your letter dated November 14, 2013.

The necklace you reference for sale on our site was not designed or created by Nasty Gal. We purchased this design from a third party. We respect and admire designers such as Ms. Spinello, but please understand that we had no knowledge that this necklace was allegedly a copy of her design.

Can you please provide us with the copyright registrations filed by your client regarding the necklace at issue? It would be very helpful as we assess this matter.

Additionally, we saw that your client is falsely implying on Facebook that Nasty Gal is copying her designs. We kindly request that you remove these false statements, as Nasty Gal did not create or manufacture the necklace at issue and also had no knowledge of the alleged copying.

Once we hear back from you, we can discuss how to proceed.

This email is written without prejudice and Nasty Gal does not waive any of it's rights or remedies, all of which are expressly reserved.

Kind regards,

Pooja

Danchuk then responded with a letter noting that there was nothing false about Spinello's Facebook post, given that it was simply a snapshot of the Nasty Gal webpage next to her own original design. She added:

However, and in a good faith effort to move this matter towards swift resolution, we would be amenable to replacing the snapshot of the webpage with an image of the Infringing Item with the name of the actual manufacturer, and removing the Nasty Gal name and webpage from the posting. Of course, in order to do this, we will require you to disclose the identity of, and contact information for, the manufacturer of the Infringing Item. Once we receive this information from you, as well as written confirmation that you are no longer selling the Infringing Item, we will move forward with the replacement.

Jamie Spinello
  • Courtesy of Jamie Spinello
  • Jamie Spinello

After more back-and-forth, Teckchandani eventually responded with this email to Danchuk, in which she offered to share information on the vendor responsible, along with data on the company's sale of her necklace — only if Spinello signed a release agreement stating she would not pursue legal action against Nasty Gal.

Emphasis mine:

Hi Ms. Danchuk,

Thank you for your prompt response.

At this time I am unable to provide any information to you regarding the sales or vendor information without a release agreement from your client, in which she agrees not to pursue Nasty Gal in this matter any further. Please be reminded that out of respect for Ms. Spinello, we removed the product at issue from the website immediately once we received your letter. Additionally, we had no hand in creating this design and were unaware there was an alleged copyright issue.

I also wanted to let you know that our sales of the product at issue have been minimal. Since Ms. Spinello's copyright application was not filed prior to us displaying the allegedly infringing product, she would not be able to recover attorneys fees or statutory damages in a legal proceeding. Given both of these facts, your client would likely spend more money in legal fees than she may be awarded if she pursues a legal claim. In light of that, please advise as to whether your client would be open to a release agreement where we provide the sales of the product at issue along with the vendor information.

This email is written without prejudice and Nasty Gal does not waive any of it's rights or remedies, all of which are expressly reserved.

Kind regards,

Pooja

This response highlights how challenging it can be for artists to even figure out who was responsible for the infringement — and how it can be even harder to get any retroactive compensation. If artists have not registered their works with the US Copyright Office before a potential infringement arises, they are limited to the amount of damages they can recover (they can only receive compensation for losses, which are difficult to quantify and prove).

And in this case, despite Teckchandani's claim that Nasty Gal "removed the product at issue from the website immediately," the item is still live on its website, as of press time, simply with a "sold out" notice added.

Teckchandani and other Nasty Gal representatives did not respond to repeated requests for comment.

Check out the full feature, "When Corporations Want Profits, They Don’t Ask for Permission" online here and in print this week.

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