Monday, January 13, 2014

Cody Foster Sends Threatening Letter to Flickr Watchdog, Alleges Copyright Violations

By Sam Levin
Mon, Jan 13, 2014 at 10:17 AM

Last fall, wholesale company Cody Foster faced a wave of copyright infringement allegations after Oakland illustrator Lisa Congdon accused the business of stealing her original designs. The controversy was included in my cover story published last week on the rise in corporations ripping off independent artists. Cody Foster officials have declined to comment on the matter for months, but lawyers for the Nebraska-based company have been working behind-the-scenes to do damage control. Since publishing my story, I received a copy of a threatening letter that Cody Foster's attorney sent to a Flickr user who had closely scrutinized the company's catalog, publishing images of dozens of its products alongside original designs the business may have stolen.

The letter from Cody Foster's lawyer said the Flickr user is "liable for harm" and that the company "may seek statutory damages, actual damages as well as injunctive relief." Perhaps the most surprising part of the threat, the attorney wrote that this Flickr user violated the copyright protections of Cody Foster — and is thus subject to damages under the US Copyright Act.

Emily Danchuk, founder of the Copyright Collaborative and an attorney featured in my piece, is now representing the Flickr user, who requested anonymity. In addition to publishing the side-by-side comparisons, this Flickr user had also contacted a number of artists to alert them to the possible infringements.

"Their claims against her were groundless and constituted bullying," said Danchuk. "Her only purpose was to get the information out there to both consumers and other artists."

She continued, "It's the bear stuck in the bear trap lashing out at whatever it can lash out at."

For context, here are examples from two artists who alleged that Cody Foster, which specializes in holiday ornaments, ripped off their original designs:

Mimi Kirchner's original lumberjack dolls:

Mimi_Kirchner_lumberjack_2.jpg
  • Courtesy of Mimi Kirchner

Mimi_Kirchner_lumberjack_1.jpg
  • Courtesy of Mimi Kirchner

And ornaments from Cody Foster's holiday catalog:

mimi_kirchner_ripoff__cody_foster_lumberjacks.jpg
  • Courtesy of Mimi Kirchner, via Cody Foster catalog

And here are side-by-sides of Cassandra Smith's original hand-painted deer antlers next to Cody Foster's ornaments:

Cassandra_Smith_vs_Cody_Foster.jpg
  • Courtesy of Cassandra Smith

Cassandra_Smith_vs_Cody_Foster_2.jpg
  • Courtesy of Cassandra Smith

The letter last month to the Flickr user came from the Domina Law Group, which appears to specialize in personal injury law. Attorney Brian Jorde wrote that Cody Foster is a "nationally, and globally, known distributor of Christmas related ornaments and other products. It goes to considerable expense to create original art work, which is used as a basis for the design of its ornaments. Those designs are proprietary and copyrighted. They may not be used without Cody Foster's permission." Regarding the Flickr page, he continued:

Your false comparisons and contact with Cody Foster's retail clients have substantially harmed its business relationships. Not only are your actions grounds for a recovery of damages for tortious interference with those business relationships, but you are liable for harm caused by your false comparisons of Cody Foster's products with those you find on the internet.

Separate from these allegations, Jorde said that the Flickr page's use of photographs from Cody Foster's catalog constitutes a violation of its copyright protections, such that the company is entitled to statutory damages, actual damages, injunctive relief, and attorneys' fees.

In response, Danchuk pointed out that the products in question appeared to be derivative works based on original, copyrighted designs. If Cody Foster moves forward with these threats, she said that she would seek to invalidate its copyright registrations. Jorde's letter said that he will "consider not filing any formal actions" if the Flickr user immediately remove the images, among other demands. Danchuk has not heard from him since the original letter.

This letter — much like the emails from Nasty Gal I published last week — highlights just how challenging it can be for artists to speak out about alleged infringement.

Jorde and Cody Foster representatives did not immediately respond to requests for comment.

You can read the full letter here.

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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