Design Pirate Cody Foster Tries To Buy Victim's Silence

The Nebraskan tchotchke maker is ready to deal with the independent designers it stole from. But there are some onerous terms.

Design pirate Cody Foster is at it again. Accused of ripping off the designs of a number of independent designers late last year, the Nebraskan tchotchke wholesaler is now trying to settle one of the lawsuits that has sprung up in the wake of the allegations.

Cody Foster's conditions? That the independent designer accusing the company of piracy license her designs to Cody Foster & Co. for $650 and submit to a gag order, deleting any complaints about the company from the web.

In our first story about Cody Foster, we detailed how pursuing a case against a design pirate can cost independent designers hundreds of thousands of dollars in accumulated legal fees. Even if you win, you'll likely lose. Yet there is a way to fight companies like Cody Foster. When independent designers took to the Internet to complain that the Nebraskan tchotchke maker had infringed upon their works, many of Cody Foster's clients—including, Anthropologie, and West Elm—immediately ceased business with the company.

Cody Foster is now offering payment to its critics, trying to convince them to be quiet. As of press time, Cody Foster's attorneys have declined to comment.

Late last year, Cassandra Smith, a Milwaukee-based artist known for her distinctively painted antlers, discovered that Cody Foster was selling antlers to retailers that were nearly identical to her designs, right down to the color patterns. Cody Foster offered Smith $650 as a settlement for the alleged infringement, far less than her attorney fees would have been.

Then there was the fine print. "Essentially, Cody Foster was willing to settle, as long as my client was willing to agree to license Cody Foster her designs and keep quiet about it," said Emily Danchuk of the Copyright Collaborative in a phone interview with Co.Design late Tuesday morning. The Copyright Collaborative is a membership-based law association devoted to helping independent designers protect themselves against IP theft and copyright infringement.

The details of the agreement were initially this: While Cody Foster denied having pirated Smith's designs, Cody Foster was still willing to agree to a license to use Smith's deer antler designs, both retroactively and going forward in perpetuity. In exchange for this license, Cody Foster was willing to pay Smith $650 as long as she submitted to a gag order, which would not only prevent her from talking about the dispute in the future, but which would require Smith to delete any mentions of her dispute with Cody Foster from the web, including tweets, Facebook statuses, blog posts, and more. Smith would also have to acknowledge that she had defamed Cody Foster in the eyes of the company's clients.

Smith and her attorneys initially declined the offer, indicating that $650 was not worth a gag order on what they had been through, and reached out to Co.Design. Since then, Cody Foster's attorneys have indicated that they are willing to discuss a larger payment in exchange for licensing Smith's designs. As of publication, this remains unresolved.

Complaints of design piracy against Cody Foster go back to at least 2010. In a statement to Co.Design, Cody Foster admitted that "a small number of products in our catalog of more than 1,800 items bear strong similarities to ones being sold by others." It was "not excusable," the statement said, but it was the sort of thing that "happened regularly in this industry" because documenting artistic inspiration is a "difficult process."

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  • Larry Buller

    If you're so concerned about Cody Foster ripping off other artists why then did you do the same thing by appropriating his copyright protected white horse which was on the cover of a recent catalog? I have a funny feeling that this reporter has a very biased viewpoint and that the real truth is something more in the middle. This type of thing happens a lot in the industry...have you bothered to check to see how many other artists have ripped off Cody Foster designs? I have a feeling that you would be surprised at that number. I have seen his designs copied by Bethany Lowe, Creative Co-op, Roost, Anthropologie, Urban Outfitters and many others.
    I'm not sure where this reporter got the figure of $650 dollars as a "payoff" . I strongly believe this amount and many of the facts in this article are significantly flawed. Are you sure that Ms.Smith did not blackmail Cody Foster and in return would offer her silence on this matter? This author may want to check his sources.

  • Eric Hsia

    You know, Cody Foster, you might spend more time figuring out how to make right by the artists you've ripped off, instead sending internet shills to steer the conversation away from your horribly unethical and downright criminal business practices. How much are they paying you, Larry?

  • There is "inspired by" and then there is "straight up rip off"... judging by the photos here it's not a mere coincidence! Cody Foster seems to be looking for an easy way out and $650 is an insult!

  • Sure, this sort of thing happens. It's a big world. However, when it's revealed that you've lifted someone's design—be it intentional or accidental—then you've got to set things right. The least Cody Foster could do is cover the attorney fees.