Store pulls Cody Foster ornaments over questions of originality - Omaha.com
Published Monday, November 4, 2013 at 12:30 am / Updated at 3:08 pm
Store pulls Cody Foster ornaments over questions of originality

The Afternoon, a gift shop with stores at Westroads Mall and Midtown Crossing in Omaha, won't be carrying Cody Foster & Co.'s holiday ornaments this year despite their enormous popularity.

Owner Marie Clifford made the decision a week ago after receiving an email from a customer alleging that Cody Foster, a Valentine, Neb.-based wholesaler, has been copying the artwork of independent artists and saying she wouldn't shop where the products are sold.

It turned out that Cody Foster, which sells thousands of folk-art inspired ornaments and home decor, is at the center of a firestorm over allegations that it pirated the designs of California artist Lisa Congdon without her consent.

The company disputes that it copied Congdon's work, or that her work is original, but said it takes the allegation seriously and is quick to respond to such claims. Art and copyright experts say similarities abound in folk art and it's not always easy to determine what's original.

The Nebraska company's roots extend to 1991, when Cody Foster, a 16-year-old student at Valentine Rural High School, created a line of handmade folk-art dolls that caught the eye of Tiffany's, Bergdorf Goodman and the American Folk Art Museum store in New York City. In 2002, Foster was a recipient of an Entrepreneur of the Year Award from the Nebraska Center for Entrepreneurship.

Last year, Foster told The World-Herald that the family-owned wholesale business grossed at least $3 million a year.

Controversy erupted in October when Congdon, a commercial artist whose clients include Trader Joe's, Urban Outfitters and American Greetings, was tipped off by an online acquaintance that Cody Foster was peddling three-dimensional ornaments that looked strikingly similar to illustrations she had created and displayed on her blog and Etsy.com, an e-commerce site that sells handmade items.

The renderings, which date from 2011 and 2012, depict reindeer, polar bear and mountain goats clad in Nordic-inspired, patterned jackets.

“The copy is so blatant — down to the design elements on the animals' jackets — that it literally made my stomach turn when I saw it,” Congdon wrote on her blog. “This particular artwork ... came from my imagination. There are no photographs online of actual animals wearing jackets like these. ... The only way Cody Foster would have transferred the same imagery to their ornaments is by using my artwork as reference.”

Congdon's complaint was spread by sympathetic bloggers and others on social media and, on Oct. 17, West Elm announced it was pulling all Cody Foster products, canceling future orders and ceasing to do business with the wholesaler. “We love authenticity,” the West Elm blog said. Fab.com and Anthropologie made similar announcements.

Brian Jorde, the Omaha-based attorney for Cody Foster, said the company disputes Congdon's claim that it copied her designs.

“Reading her initial accusations you would think she was the sole originator of those illustrations,” Jorde said. “She borrowed heavily from others. And whether or not there may be a resemblance to a few Cody Foster ornaments, her illustrations aren't her original designs.”

The 189-page holiday catalog also includes other reindeer ornaments wearing decorated collars and saddles.

Under existing copyright laws, once you put pen to paper and create a short story or drawing, “you have acquired a copyright without having to do anything else. However, you cannot enforce your copyright unless you have registered it with the U.S. Copyright Office,” said Jim Crowne, director of legal affairs at the American Intellectual Property Law Association in Washington, D.C.

It's not clear whether Congdon registered her artwork.

When contacted by The World-Herald, Congdon said she could not comment on the situation “due to pending legal negotiations with representatives of Cody Foster.” She added that she might be able to talk later “once we have reached a settlement.”

Congdon's outcry, which included hiring an attorney, prompted other artists to call foul on the company.

Mimi Kirchner, a Boston-area artist, said she believes that three items in Cody Foster's 2013 holiday catalog were copied from her artwork: a pair of lumberjacks, a pair of owls and several fish.

“You think a fish is a fish, or an owl is an owl, but it's too close,” Kirchner said. “They use the same patterns, the same colors, and the wings and fins are in the same place,” said Kirchner whose artwork is for sale on her website and Etsy.com.

Kirchner designs have been licensed by the Land of Nod, the children's division of Crate & Barrel. “I have a toy line with them. They work with independent artists and they pay us. There is a right way and wrong way.”

What Kirchner says galls her isn't the lack of licensing fees — “We don't expect much money and it wouldn't break them to pay us” — but the notion that “a big company would copy my design and say this is our work now. It feels like someone came into your house and went through your underwear drawer and stole half your things.”

In 2005, Cody Foster & Co. adopted its eponymous name, switched to being a wholesale-only company and began manufacturing its goods overseas. In the 1990s, Foster hired friends and neighbors to hand-craft his designs, under the company's former name, Backporch Friends American Folk Art, but as the business grew, “It just got too difficult to keep up the handmade end,” Foster told The World-Herald last year.

The small company, which is located in Cherry County, employs about 15 permanent workers. During the holiday season, it adds about 10 part-time employees to the payroll, Foster said last year. For Valentine, whose population was pegged at 2,760 in 2012, it's a fairly good-size business. Cody Foster markets its wares to retailers through its catalogs and is a presence at industry gift shows in Dallas, Atlanta and New York.

With merchandise manufactured elsewhere, the company's Valentine facility now focuses on quality assurance and shipping. Foster, who learned craft-making from his grandmother, concentrates on the design side, he has said, drawing inspiration, his website says, from “offbeat vintage pieces and unconventional antiques.”

Congdon and other artists, however, question his sources and allege that the company is trawling the Internet for artwork, disregarding the rights of independent artists.

Omaha artist Dana Grandbois has followed Congdon's blog for years. Grandbois makes colorful line drawings that she sells on her blog, Etsy.com and Flickr.com, a photo-sharing website.

“I hear about people's work being copied or stolen all the time, and when I heard about Lisa's work being copied, it made me want to help her,” Grandbois said. “It's not just the theft, it's that they don't consider the person behind the art — it's part of you.” Art is personal, she said, and when used without permission, “it's hurtful.”

Clifford, who also owns a gift store at the Mall of America in Minneapolis, said she empathizes with Congdon, being a painter herself.

“I'm very supportive of the arts, very sympathetic,” Clifford said. And until the brouhaha is settled, she said she won't be ordering from Cody Foster. “I would hate to carry anything that was plagiarized. I have a few of their items on the shelves in Minneapolis, but once they're gone, they're gone.”

Jorde said “the vast majority of Cody Foster customers are sticking with them.” Jorde said he did not know how many retailers carry the company's products.

“Cody Foster takes these accusations and innuendos seriously,” Jorde said. In fact, he said, the company is “settling two matters against two companies that infringed” on Cody Foster designs.

Others say the Congdon-vs.-Cody Foster case isn't as clear cut as it might first appear.

Brian Sherwin, a Chicago-area art critic jumped into the fray after pointing out that Congdon may have failed to credit various wildlife photographers whose work she may have used as the basis for her animal illustrations.

“It would place her claim to copyright into question unless she can show that she had permission from those respective copyright owners,” said Brian Sherwin, editor of the Art Edge.

The designs and symbols on the animals' jackets, Sherwin said, “can be linked to Nordic, Inuit and Navajo designs and symbols. My understanding is that Congdon has acknowledged the influence of Nordic designs and symbols. That is fine. But she does not own that visual heritage.”

Even Clifford expressed some doubt: “I question the allegations in this particular case because her [Congdon's] designs are so similar to ethnic Scandinavian designs.”

What makes this a difficult issue hinges on the very nature of folk art, which often incorporate figures and motifs that have been around for centuries, making it difficult for anyone to claim those basic designs as their own.

“Traditional designs and symbols are at the heart of the issue,” Sherwin said.

An Internet search yielded needlepoint and felted polar bear carousel ornaments with elaborate saddles, including a “Steampunk Carousel” polar bear pattern available at urbanthreads.com, reindeer embellished with fancy saddles, and on eBay a 1940-era soft-bodied lumberjack doll, another longstanding archetype.

Sherwin said artists can take “pre-emptive steps ... if alleged copyright infringement occurs. They can copyright their images before displaying them online.”

As for the Congdon and Cody Foster, controversy, “The way I see it — both sides have a little explaining to do,” Sherwin said.

Rather than copyrighting their designs, which is perceived as a lengthy process, many artists including Kirchner, say they depend on the “eyes of the Internet,” to keep them safe. In one instance, an Australian admirer of Kirchner's work, alerted the artist to a clothing company that had copied one of her works and used it in a fabric design. “I was able to get a settlement,” Kirchner said.

Artists shouldn't depend on that method to protect their interests, legal expert Crowne said. Artists, writers and musicians can register their work at copyright.gov electronically for a filing fee of $35 per item. The application for visual art works must be accompanied by photographs of the item.

But not all artwork can be copyrighted — familiar symbols or designs or mere variations of typographic ornamentation, lettering or coloring are excluded.

“The fundamental requirement for copyright is that the work is original,” Crowne said. If some elements are marginally original, then your rights are much narrower,” he said.

Winning a case can be a challenge. Someone who alleges “copyright infringement must show that copying took place and that it's not just a similarity,” Crowne said.

Terry Hart, director of legal policy at the Copyright Alliance, said there has been explosion of copying since the advent of the Internet. The nonprofit group represents the interests of creators, visual artists and musicians. Individuals who believe their work has been pirated should contact a lawyer versed in copyright or entertainment law, Hart said.

Although some attorneys will take a good copyright infringement case on contingency, said Crowne, many independent artists say they don't have the means to pursue a copyright violation. “It's terribly expensive to fight this stuff,” Kirchner said.

Congdon's decision to pursue her case is unusual.

Jorde, Cody Foster's attorney, said that when contacted by a designer or artist who believes a product may have similarities to something they claim is their original work, Cody Foster is quick to respond and work with them. “This may mean ceasing production of an item or pulling the product offering until the issue is fully investigated.”

“It's nothing new for people to claim 'that looks like something I've done,'” Jorde said.

He said he did not know how many times Cody Foster has pulled the plug on an item.

“That's happened and it's not uncommon,” the attorney said. “It's an industrywide issue.”

Contact the writer: Janice Podsada

janice.podsada@owh.com    |   402-444-1142

Janice is a retail reporter for The World-Herald's Money section.

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