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 Fab.com, 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."