Co.Design

Alleged Design Pirate Cody Foster Is Only Sorry They Were Caught

Three weeks after widespread allegations of design piracy went public, the Nebraskan tchotchke maker finally releases a statement worse than silence.

Almost three weeks after the company was accused of shamelessly stealing the work of independent designers, Cody Foster & Co has finally released its first statement on the matter to Co.Design. But the Nebraskan tchotchke wholesaler would doubtlessly have been better off keeping its mouth shut.

While admitting that design piracy might have "inadvertently" occurred and that what had been done was "not excusable," Cody Foster then argues that design piracy isn't a big deal, happens all the time, and that the real crime here is that its business has been disrupted by the allegations.

Here is Cody Foster & Co's statement, as released to Co.Design, interspersed with our comments.

Cody Foster & Co. acknowledges that a small number of products in our catalog of more than 1800 items bear strong similarities to ones being sold by others. When this issue first came to our attention in mid-October, we immediately pulled those products from our catalog and offered refunds to any of our customers that asked for them. We deeply regret any harm we may have inadvertently caused to our customers and the artist community at large. We are instituting new processes and procedures to reduce the likelihood that this happens again.

At first glance, Cody Foster's statement seems to begin on an earnest note, but the wording quickly troubles. The company reveals that instead of contacting artists whose designs were allegedly pirated and working out licensing agreements or financial restitution, Cody Foster has simply pulled the items to resolve the problem: the artists don't get squat. And even from the first paragraph, Cody Foster is unwilling to promise that this will never happen again, only that they are instituting policies to reduce the likelihood of it happening again.

As we'll soon see, however, it's not even clear what Cody Foster means to avert in the future: design piracy, or merely the allegations of it.

Our explanation for how this happened is simple, though not excusable. Unfortunately it occurs regularly in this industry. Documenting "artistic inspiration" for reproduced craft products—particularly for those based on folk designs—is a difficult process and presents a huge challenge for suppliers, artists and retailers alike.

In other words, to Cody Foster, this controversy isn't an issue of design piracy. It's a failure to correctly "document" work that was somehow nebulously "inspired" by the designs of independent artists. But such documentation does exist, and it implies a consistent, multi-year campaign of outright design theft.

As we reported three weeks ago, many of the artists alleging design piracy against Cody Foster have records and receipts that prove that Cody Foster vice-president Diane Foster had purchased items from their Etsy shops and had them shipped directly to Cody Foster's Valentine, Nebraska, headquarters. In addition, Lisa Congdon—the artist whose blog post alleging design piracy kicked off the recent maelstrom of controversy—had her designs copied by Cody Foster right down to her unique artistic signature. A lack of documentation is certainly not the issue here.

But even if design piracy did occur, Cody Foster wants us to remember who the real victim is here: Cody Foster.

Our own designs have been directly lifted by other suppliers on many occasions and we have generally found straightforward ways to settle amicably between parties. In this case, a single artist made public allegations before she contacted us directly and took direct actions to whip up emotion and support based on misinformation. She has encouraged her supporters to disrupt our day-to-day business operations and caused documentable financial harm to our company.

It's true, there has been "documentable financial harm." In fact, we've documented it. Once allegations of design piracy were made by artist Lisa Congdon, Anthropologie, Fab.com, and West Elm all released statements saying that they were severing ties with the company. The reasons these companies did so is because Congdon's allegations were not a one-off occurrence. An entire Flickr group has been set up, documenting unlicensed items from the Cody Foster catalog that bear a striking resemblance to dozens of independent artists' work.

In fact, allegations of design piracy against Cody Foster go all the way back to 2010. Cody Foster responded to those allegations by locking up their online catalog behind a password so that any design piracy that may be happening was extremely difficult to corroborate. Is anyone really surprised that such a furtive company is complaining that allegations of design piracy against them weren't resolved secretly?

Cody Foster continues:

What has not been widely reported is that this same artist has now, herself, been criticized by independent art critics about the origins of her designs.

Here, Cody Foster refers to a blog post asserting that some of Lisa Congdon's illustrations—including one that Cody Foster copied, right down to Congdon's signature—were created by referencing the pictures of various nature photographers.

Without delving into the legalities of this, let's assume for a moment that what Cody Foster is saying here is true, and that Lisa Congdon did rip-off photographers in the creation of her work (and we are not saying that she did). If that's true, does that mean that Cody Foster is being accused of (and kinda, sorta admitting to) pirating the work of two artists with the exact same product?

Cody Foster & Co's statement is a sad, rotten salmagundi: a borderline delusional defense that comes weeks too late to be earnest about anything except the repeated insistence that the only thing wrong with design piracy is daring to speak out publicly against it. But read it for yourself: the entire statement is reprinted without interruption and in full below.

Cody Foster & Co. acknowledges that a small number of products in our catalog of more than 1800 items bear strong similarities to ones being sold by others. When this issue first came to our attention in mid-October, we immediately pulled those products from our catalog and offered refunds to any of our customers that asked for them. We deeply regret any harm we may have inadvertently caused to our customers and the artist community at large. We are instituting new processes and procedures to reduce the likelihood that this happens again.

Our explanation for how this happened is simple, though not excusable. Unfortunately it occurs regularly in this industry. Documenting "artistic inspiration" for reproduced craft products – particularly for those based on folk designs – is a difficult process and presents a huge challenge for suppliers, artists and retailers alike. Our own designs have been directly lifted by other suppliers on many occasions and we have generally found straightforward ways to settle amicably between parties. In this case, a single artist made public allegations before she contacted us directly and took direct actions to whip up emotion and support based on misinformation. She has encouraged her supporters to disrupt our day-to-day business operations and caused documentable financial harm to our company. What has not been widely reported is that this same artist has now, herself, been criticized by independent art critics about the origins of her designs.

Cody Foster & Co. is a small, privately owned business with 18 employees located in central Nebraska. We greatly value original design and artistic creation and we are committed to properly compensating individuals who clearly create unique designs that delight and inspire. Even before this incident, we have been exploring new ways to engage with artists through commissioning designs and providing royalty agreements based on sales. We know that more needs to be done to protect artists and we look forward to doing our part to ensure a fair environment for everyone involved.

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95 Comments

  • Paul Milauskas

    As an artist myself, I am familiar with this sort of situation. We are not talking about one artist using another's work for inspiration, nor even to make a few bucks themselves. This is about a CORPORATION breaking the law! It is about the "little guy", the individual artists being used & their rights that protect them & their work, ignored.

    Even if it is a business made up of 18 family members, it is a big business compared to some sole artists trying to 'eek out a meek living by doing art.
    This is a company producing items in Volume, at rates single artists themselves can not even compete with. Even to bring a court case against these types of corporations takes money & resources most artists don't possess.

    We could forgive an artist for a small infraction of the law. But the information here shows that this company repeatedly used artists & their designs without their knowing, & treated them (& their creations & artwork) as if they were its own source of ideas & products, for THEM to sell & use as they would. The information clearly shows this is not an "oops", accident.

    Who of us "artist"s have the resources or can afford to have our work produced abroad in mass & marketed to retailers across the country? This is NOT an equal fight here.
    From what is written, these people obviously knew what they were doing... all the way to the top of the corporation, & they knew it was illegal. Shopping at Etsy for ideas & designs says it all! "the artists....have records and receipts that prove that the vice-president herself had purchased items from their online shops and had them shipped directly to the company's headquarters. To top off the blatant disrespect of any copyright law, was shown by even copying the one artist's UNIQUE ARTISTIC SIGNATURE! Talk about not only being lazy & arrogant, but this is blatant stealing & showing that they felt completely above the law & reasonable ethics!

    What more can an artist do to prove their case? What more proof can someone give to show that this company & its top executive knowingly & blatantly IGNORED COPYRIGHT LAWS & STOLE WHAT BELONGED TO them & OTHER ARTISTS! It is criminal!

    So what about the court case?...There is a criminal court case, isn't there? Weren't charges brought against this corporation by the government? If not, why not? LAWS WERE BROKEN! That is obvious!
    And where are the punitive damages for breaking the law?

    It is not proper to only now pay the artists for what they stole from them, as that is what they should have done in the first place! But they broke the law & stole these artists designs & totally ignored their rights as artists! Paying them for the work should be only one of the first things they should be made to do now. They also should now have to pay these artists additional money, as punishment for the actions done against them (ie: the theft of their artwork, defiling their rights, not to mention paying for the stress that their behavior has caused these artists), punitive damages to them as well as punitive damages paid to the government for blatantly breaking the copyright laws themselves!

    Only then is there any hope of getting this corporation (& those running it) to stop these sorts of practices. Otherwise it is simply a matter of this incidence influencing them to find better ways to cheat without getting caught. For it is meaningless & accomplishes nothing ...if they do get caught again, to only have to (at most) pay what they would have had to pay in the first place! That is NOT justice! That simply would show them that they have nothing to lose by doing it again!
    (That would be like "steal a car". If you don't get caught, it is yours to keep. If you do get caught, you simply have to pay for it...and nothing else would happen!Where then, is the incentive to not steal a car?!)

    This company should not be permitted to get away with this!
    As for us, we have decided we will try to NOT do business with any retailer that does business with this company at all. Even if these retailers are NOT buying the "suspect" items! As artists ourselves (old, unimportant & near retiring), we do not want to do business with any retailer who themselves support a corporation (with their own business & dollars) who's ethics are to steal from artists, like us.
    Really, it is the only thing we can do personally.

    What good are having copyright laws if the judicial process isn't going to support those laws & enforce them in a way that stops guilty companies from continuing to make victims out of us all. Simply catching them & telling them to stop, or even making them pay the artists (they stole from) for their work, is not enough. A good start perhaps, but that only puts them in the same place they would have been in had they done things legally. That is no motivation to NOT steal from others again.

    How about punishing them for breaking the law, & giving them a reason to not try such things again in the future! (Why would they not risk cheating again, if the only risk is having to pay for what they steal.) Even their reply to the charges shows how self centered they are & how they feel they are above others.

    They bring up the difficulty with folk designs in copyright infringement, yet folk designs are NOT involved in this case & is simply a "red herring" they bring up to direct attention away from themselves. Also for them to mention about "Our own designs have been directly lifted by other suppliers..." is totally meaningless & another ploy to claim that what they did was nothing & that since it happens to them, their doing it to others is not a big deal! They REALLY do have a twisted view of the law & their own importance. (They seem to feel so far above the law, that it has no importance beyond what it can do FOR them.)

    In view of the charges & proof against them, their replies & only concern was THEIR OWN customers & THEIR OWN bottom line. They had NO sympathy nor concern for their victims. If you look at the replies that Cody Foster Corp. gave, it is obvious that they feel they are above all copyright laws! Wake up people!

    I originally thought that this company was founded in another country, where copyright laws are hard to enforce. But to discover that this company is right here in the good ol' USA, I was appalled!

    If this company is allowed to continue to do business, having shown exactly how they view things & still justify their past behavior, then what hope do any of us have for our own rights? And what is the point of having copyright laws if they are not enforced enough to actually change anything?

    For those artists/photographers/designers, who feel you had reparations made to you because you got a little payment & will also now be able to work for this company (& actually get paid for your work you do for them instead of getting ripped off)... congratulations! I don't envy your position at all at this point however. While you may have found a job/client that will supposedly now pay you; need I remind you that YOUR client/boss/partner is someone of highly questionable ethics & behavior, who still justifies their actions for blatantly breaking copyright laws!

    If you think you will actually be treated differently in the future than you or others have been up until now, you may be missing what is right in front of you. Do you really believe this situation was done by mistake & that these people are the type you want to be doing business with?

    I wouldn't even want to be associated with these people. But then, that's me. If artists don't stand together supporting good copyright laws that work toward protecting us & our rights, and against corporations & people like this, we certainly aren't going to be able to stand alone.
    We have met other artists who were approached or fined for using some copyrighted work of some large company (like a woman we met at an arts & crafts fair, who made & sold a few fabric items with some well-known "character" on them). She told us about how the company claimed that her making & selling these items somehow greatly affected their business & was told to stop, destroy all related inventory & that she might possibly have to pay them all profits from any related sales.
    Well, if some unknown craftsperson can "greatly affect" a big corporation, how much more does even a small corporation (one that does high volume sales using illegally copied designs & artwork), "affect" the "unknown artists & crafts-persons" that are trying to make a small living in this field, when they steal & use their designs & mass market them?

    It certainly was an interesting article & it will be interesting to see if anything comes of this case.

  • Jennifer Primeaux

    The Vice President was ordering "ideas" from etsy shops! Wha-what! That's stealing ideas. Plain and simple.

  • Lisa

    Looks like Lisa is now having to pay licencing fees to the artists and photographers whose work she used without getting permission. Pot meet kettle.

  • 213scream

    Jon Atkinson wrote "I am pleased to say that Lisa and I have negotiated an amicable, retrospective, licensing and future royalty agreement for the use of my image which is based on my standard fees. As such Lisa can now use her illustration of my Lemur image for commercial purposes across the Web.

    I will continue to follow this story with interest but in terms of my personal involvement I am satisfied with the outcome."

  • 213scream

    http://theartedge.faso.com/blo...

    Photographer John Atkinson posted this

    "I am pleased to say that Lisa and I have negotiated an amicable, retrospective, licensing and future royalty agreement for the use of my image which is based on my standard fees. As such Lisa can now use her illustration of my Lemur image for commercial purposes across the Web.

    I will continue to follow this story with interest but in terms of my personal involvement I am satisfied with the outcome."

  • Danilo Bonilla

    Kudos to Fast Company for shining the light of day on this topic. I find Cody Foster's explanation laughable. This really shows the power of social media, just because you're in Nebraska doesn't mean you can hide from your actions.

  • Maia Ming Fong

    So what does one do? I just discovered a design of mine rather blatantly knocked off by a young designer that was being promoted on DesignMilk. Suggestions?

  • MG

    oh boo hoo hoo to a company that rips off designs and is now paying the price.....get a grip Cody Foster.....if you are NOT creative....then so be it but give credit and $ to those whose designs you have stolen

  • joannajorgensen

    How sad that their business is being disrupted by the consequences of their behavior. One if the great things about the internet is that all the small voices come together into a giant roar that can accomplish things that one person alone could not fight.

  • C1586

    Cody Foster are despicable, just because one of the artists that has flagged their bad behaviour has been not exactly honest herself, doesn't mean the other artists involved shouldn't receive an apology and compensation. From what I understand artists did try to contact the company directly but were ignored, so they did what most people do when they are ignored: they made a noise. Also 1800 designs that 'bear strong similarities' to already established designs? Bloody hell, that's ridiculous, they need to start acting responsibly, if there are that many designs they've copied this is just the beginning of what may come for them.

  • Normita

    You stop being an artist the moment you start copying from others and if you are making a profit from it then you are a thief.

  • thestereobus

    Wrong. There is a legal difference between a derivative work and theft.

  • CathWren

    That is a legal differentiation, but does not change the fact that Cody Foster Co. made exact duplicates and generated thousands of dollars to line their own pockets on the backs of America's craftsmen and women.

  • Brian Sherwin

    Fast Company should ask artist and designer Mathilde Aubier about her allegations against Congdon.

  • Alex Henderson

    I have been following this story very closely. Cody Foster and Co. stole some of my Christmas ornament designs about a year ago. I can assure you that in my case there was no doubt that they weren't just "inspired" by my designs but they copied them line for line. Hopefully this link works: https://twitter.com/HendDryGoo...
    They responded to my cease and desist (sent via a lawyer) with a dismissive letter. Copied and pasted here:

    "We (Cody Foster and Co, Inc.) received your letter requesting that we cease sale of certain tepee and feather ornaments on November 24, 2012 - Item #'s TO-025-S, TO-025-W, TO-026-W, & TO-026-S, respectively. Our company certainly wishes to avoid controversy whenever possible, and we therefore agree to cease sale of above items, as well as to remove them from our website and from any future printed material - catalog, brochure, or other material."

    An admission of guilt if I ever heard one.
    I would have very much liked to pursuit this case further but I simply couldn't afford the legal costs. Even though my lawyer felt that I would certainly win my case.

    Someone below mentioned wondering where these imitation products are made.... About 6 months before I found out about Cody Foster's rip off of my ornaments, I received an email "press inquiry" from a Chinese design "magazine". This guy said they were interested in my company as a "case study" and I was immediately suspicious. There is no way my tiny company would have been on any legitimate Chinese magazine. He wanted to know about the materials I use (and send samples!!) and my processes. He hoped I would send drawings and everything. I strung him along a little bit, trying to glean more information. I googled this "magazine" and found nothing. I googled his name and found nothing. I asked him why I didn't see anything about his magazine and he said that it was just getting started and he send me a lame PDF brochure type thing which was supposed to be the start of the magazine. I am absolutely convinced that this was one of Cody Foster's Chinese manufacturers.

    Hurray to Lisa! This is a long time coming to this company.