24 Aug Knocking Down Knock Offs: One Artist’s Fight Against Copyright Infringement
We’ve been here before. Last month, fast fashion retail giant Zara became the latest clothing brand to be accused of copyright infringement. Earlier this year, indie artist Tuesday Bassen realized that Zara had copied her original artwork after her Instagram followers reached out to her asking if she had collaborated with the company. Upon finding that Zara had in fact taken four pieces of her work without permission, Bassen took immediate action and, through her lawyer, contacted the company to demand they stop selling her art.
In its reply to her letter, Zara stated that because Bassen’s work was not widely known and Zara was a large, well-known company, her protestations did not matter. It also stated that Bassen’s work had a “lack of distinctiveness” that “makes it very hard to see how a significant portion of the population anywhere in the world would associate the signs with Tuesday Bassen.” Bassen posted Zara’s response on her Instagram page, and several major media outlets picked up the story. In the face of public backlash, Zara has since removed the items featuring the incriminating evidence from its site. Since then, however, many artists have come forward accusing Zara of stealing more than 40 images from artists. Bassen is currently planning to sue Zara for copyright infringement.
Why are Zara’s alleged actions a problem?
Because, if true, the company engaged in copyright infringement, for which there are severe penalties. Those who infringe on the copyright of registered works face civil penalties of $750 to $30,000 per work. A copyright is a bundle of exclusive rights given to the creator of an original work of authorship that has been fixed in a tangible medium of expression. Those rights are the right to reproduce, create derivatives, distribute copies, publicly perform, and publicly display the work. Anyone who exercises one of the aforementioned rights without license to do so from the copyright owner has committed copyright infringement. Bassen’s pieces are works of art, so they fall under the category of “original work of authorship,” and her designs have been placed on pins and patches, so they are fixed in a non-transitory form of expression. Satisfaction of both of these requirements makes her work fall under copyright protection.
Unfortunately, Bassen’s situation is all too familiar
Numerous incidences have been reported of fashion companies with deep pockets and worldwide recognition knocking off smaller designers and artists. The majority of the time, however, the aggrieved parties do not sue because they are intimidated at the prospect of waging war against a large company or are scared off by large legal fees. In these respects, Bassen’s circumstances are unique because not only did Zara respond to her accusations and discontinue the sale of her work, but also Bassen has decided to use the full weight of the law against the company.
Zara’s weak defenses
While the outcome of this dispute remains to be seen, the defenses that Zara has put up do not appear to be strong enough to hold up under legal scrutiny. In its reply letter, the company argued that Bassen’s work does not have “distinctiveness” and that a significant portion of the population would not recognize her work. Copyright protection, however, is not concerned with the distinctiveness of a work; it only requires that a work be original and fixed in a tangible medium of expression. Further, Zara’s statement that her work is not popular enough to warrant protection misinterprets the law. As long as Bassen can prove that Zara had access to her work, an infringement claim can be made. She sold the pieces on her website, so it can be reasonably argued that Zara could have seen her work.
A turning point?
Bassen’s situation also shows how a new player on the scene, social media, can help police infringement. She was first alerted to the company’s actions through her social media followers, and upon using the platform to publish Zara’s response, media attention was swift. While the company did not issue an apology or acknowledge any wrongdoing, the negative attention did lead it to remove the work from its site and issue a statement saying that it values intellectual property rights and are working with Bassen to remedy the situation. Packed with an arsenal of copyright and social media platforms, this unfortunate matter could be the turning point in helping artists and designers turn the tide of infringement by big corporations.