You’ve probably never heard of Cody Foster & Co. That doesn’t matter, though, because if you’re an independent artist, designer, or illustrator, there’s a good chance Cody Foster has heard of you. In fact, the company may already be selling works based upon your designs to retail clients such as Nordstrom, Madewell, Anthropologie, Terrain, and Fab.com. And, legally, there might not be a thing that anyone can do about it.
From the outside, Cody Foster seems like a quaint enough company. Going to the official website, the first thing you will encounter is a picture of an ivory stallion, bedazzled with a rainbow assortment of Christmas ornaments. If you look at the company’s “Our Story” page, you’ll read a homey tale about the eponymous Mr. Foster, who–inspired by his grandmother’s passion for crafting–took his mother, Diane Foster, as a business partner to create a tchotchke empire. The company sells ornaments and home decor items at wholesale prices to retailers including West Elm, Nordstrom, and Anthropologie. According to the website, Cody Foster is located in Valentine, Nebraska, a picturesque little town portrayed as having “wide-open spaces, big sky, rolling grasslands, tranquil lakes and secluded waterfalls.” Cody Foster says that the items that the company sells are “handmade using honest materials and finishes.” The inspiration for their designs, the page opaquely says, are “drawn from many sources.”
That’s one way of putting it. A more accurate description might be to say that Cody Foster & Co shamelessly steals their designs from many sources, at least according to Oakland, California-based illustrator Lisa Congdon. Congdon believes that her designs have been stolen by Cody Foster and adapted, without her permission, into a line of cheap Christmas ornaments. And she appears to have convincing proof.
In 2011 and 2012, Congdon drew a series of illustrations featuring Nordic animals (including a reindeer and a polar bear) wearing uniquely patterned red-and-green jackets. Alerted by a reader, Congdon discovered that Foster was selling ornaments based on her designs in its 2013 catalog, right down to the jackets. The textured jackets the animals are wearing would seem to be a dead giveaway of design piracy, but perhaps Cody Foster and Congdon had drawn inspiration from the same source, like a vintage textile? Not a chance, according to Congdon: the blankets painted on Cody Foster’s ornaments prominently feature a black, jagged shape which Congdon says is her own unique artistic signature.
“If it had been less blatant, I would have thought twice about going public with this,” says Congdon, who published a post about Cody Foster on her blog this week. “Sometimes, the lines are blurry. But this imagery is very unique to me. You won’t find anything else like it out there on the Internet.” Cody Foster & Co. did not respond to several email requests and telephone messages from Fast Company seeking comment.
Leveraging her comparatively large social following, Congdon went public with her case against Cody Foster, and her blog post almost immediately went viral. But she wasn’t the only one making a fuss. Also this month, a Flickr group was set up documenting other Cody Foster designs with a strong similarity to the work of independent artists and designers selling their work on the Internet, such as Abigail Brown, Mimi Kirchner, and Cassandra Smith.
Speaking to Co.Design, Abigail Brown said: “I’m furious. Looking at my owl design, and then Cody Foster’s, there’s no ambiguity whatsoever that they stole from me.” Brown says that she even has records of a woman named Diane Foster–the same name as Cody Foster’s mother and the woman listed in state filings as the vice president of Cody Foster & Co.–purchasing one of her designs off of Etsy and having it shipped to Cody Foster’s headquarters in Valentine, Nebraska, back in 2009. (Diane Foster did not return calls from Fast Company.) “Cody Foster is a $3 million business. It has the money to pay artists for their designs,” Brown says.
Massachusetts-based artist Mimi Kirchner, whose lumberjack doll designs look strikingly similar to something that popped up in Cody Foster’s catalog, seems more resigned. “Honestly, if they had been better copies, I would have been more upset,” she told me. “But it’s still annoying, because if Cody Foster had just approached me about licensing, I’d probably be thrilled.”
Licensing deals are how designers typically get paid when a company wants to sell their work. Agreements vary, but Congdon says that, on average, she usually expects remuneration in the low four figures for a design. Abigail Brown’s rates are even more reasonable: she licenses designs to T-shirt companies for a little over $500 a pop, no strings attached, and greeting card designs for around $150, including a 7% to 10% commission on royalties.
Allegations of design piracy against Cody Foster are nothing new. Back in 2010, similar allegations arose against the company. Shortly thereafter, Cody Foster pulled its catalog offline and made its Twitter and even RSS feed private, according to a source close to the situation who asked to remain anonymous. The source, who provided a copy of the 2013 Cody Foster catalog to Co.Design, says that Cody Foster has been selling the designs of independent artists and illustrators to big retailers for years. Controversy over Cody Foster’s alleged design piracy has only prompted the company to conduct its business more secretly, the source says. Only Cody Foster’s retail clients–which include Nordstrom, Madewell, Anthropologie, Terrain, and Fab.com–have direct access to the 2013 catalog.
Congdon insists she’s going to pursue her case against Cody Foster all the way. “It’s important to follow this through,” she says. “I’ve hired a lawyer, and I’m going to expose them, no matter what it takes. I’m not giving up, not backing down, and not settling.”
But prosecuting Cody Foster for copyright violation is much easier said than done. In fact, that’s just what design pirates are counting on.
According to Jim Crowne, the director of legal affairs at the American Intellectual Property Law Organization (AIPLA), the first obstacle that many artists who feel that their designs have been pirated face is that they may not have registered the copyright on the work in question. In American copyright law, any original work of authorship including artistic works is automatically copyrighted from the moment it is created. This is called common law protection. However, common law protection only allows you to recover damages–lost sales, and money made by an infringer selling your designs–not legal fees.
And those legal fees? They are absolutely massive. According to AIPLA, the average cost of pursuing a copyright infringement suit with damages less than $1 million starts at $200,000, and can go as high as $350,000. “Any potential litigant has to evaluate how much of a commercial and personal stake he or she has in their creative work,” Crowne says. “An awful lot of artists would want to think two or three times about the expense of enforcing their copyright legally.”
It’s classic steamrolling. Design pirates count on the fact that independent artists and designers will not have registered their copyrights, and that the legal costs of enforcing that copyright will be too much for most artists to endure. Even if they do have an existing registered copyright for their work, though, an artist must run a legal gauntlet to prove that their design has been infringed, which can exact a huge personal toll.
It sounds hopeless, which is what design pirates are counting on. But there’s something design pirates should fear even more than legal battles: publicity.
In the latest round of allegations against Cody Foster, Brooklyn design retailer West Elm has publicly divorced itself from Cody Foster, from whom they had previously purchased ornaments. Another Cody Foster retail client is Anthropologie, a company which has previously gotten in trouble for design piracy and been quick to sever relations with partners because of it.
No big, public-facing company wants to deal with the public relations nightmare that comes from being perceived as a design thief, which is why design pirates like to live in the shadows. A wholesale company like Cody Foster might not fear lawsuits, but it can be imperiled when consumers start telling their friends and complaining to the big companies that buy from wholesalers. A helpful parallel can be drawn from the fashion industry, which organized itself to combat just such issues, and has come close to getting the Design Piracy Prohibition Act through Congress.
“Shout about it,” says Abigail Brown. “These companies think they can get away with stealing, but there are just so many mediums now for us to bring things like this to light. Tweet about Cody Foster on Twitter, and talk about them on Facebook. Contact companies that do business with Cody Foster and demand they stop. We need to show companies like Cody Foster that we will fight back.”
The lesson? An individual artist may never make a design pirate pay, but collectively, design pirates can be stopped. The nature of their businesses cannot survive the scrutiny of being talked about. Perhaps that is why Cody Foster & Co. did not respond to Fast Company‘s requests for comment on this article.