Recent months have seen a number of lawsuits or threatened suits by independent artists seeking to protect their work from alleged unauthorized copying by retailers and other consumer brands.  Another similar suit has been filed, this time against clothing and accessories chain Francesca’s, as well as two of Francesca’s suppliers, plus various “Doe Defendants” (i.e., defendants that will be named after discovery) involved in the design, manufacture, distribution, and marketing of the allegedly infringing products.  See Docket No. 17-cv-00115 (S.D.N.Y.).

The plaintiffs are a group of eleven independent artists from around the United States and the United Kingdom, who make, among other things, enamel novelty pins.  (Enamel pins are “having a moment” in the world of fashion trends right now.)  As in other similar lawsuits, the complaint’s overarching narrative is that a major company, rather than create or pay artists for original designs, merely has copied and sold existing designs by smaller-scale artists, without permission and without any compensation.  According to the complaint, when some of the artists contacted Francesca’s about the infringement, a Francesca’s employee originally responded that that the company “respect[s] the designs of all artists” and would contact the vendors of the pins “to investigate and address this issue.”  However, the employee almost immediately attempted (unsuccessfully) to “recall” the email, and the artists received no further communication from Francesca’s.

As with similar lawsuits, plaintiffs bring claims for direct and contributory copyright infringement (emphasizing that the defendants’ conduct should be treated as willful for purposes of damages calculations).  Related claims focus on the integrity of copyright management information (here, the defendants’ alleged intentional removal of copyright information from the original products or their packaging, and the false identification of Francesca’s as the copyright holder of the designs).  See 17 U.S.C. § 1202.  The complaint also includes trademark claims under the Lanham Act and unfair business practice claims under New York state law because, the plaintiffs allege, the infringing pins mislead consumers to mistakenly believe that the artists are affiliated with these goods.

In Addition to Infringement Allegations, Plaintiffs Add A New Angle

This case adds an additional twist, however.  The complaint places extra focus on two of Francesca’s New York-based suppliers, O.K. Originals, Ltd. and Orion Fashions, Inc., which plaintiffs allege are “notorious distributors of knockoff and copycat goods.”  The plaintiffs allege that Francesca’s contracted with O.K. and Orion to source cheap knockoff versions of various enamel pins.  They allege that O.K. and Orion, in furtherance of this goal, “created fake online accounts and personas” on various websites, including online marketplace Etsy.com, and used those false accounts to purchase the original pins from the artists in order to create unauthorized copies of the pins.  The plaintiffs explain that this subterfuge was necessary because many artists, including the plaintiffs, are “wary” of companies like O.K. and Orion due to their “history of similar infringements,” and would have refused to fill orders placed in the companies’ true names.  Thus, the plaintiffs here have added claims under federal mail fraud and wire fraud statutes (see 18 U.S.C. §§ 1341, 1343).  (In this respect, the case bears a similarity to a recent case over alleged “scraping” of auction data, where the plaintiffs’ claims focused not just on copyright infringement of the content at issue, but on the actual mechanics of how the alleged infringer obtained the material to be copied.) Independent Artists On the Offensive It’s possible that some defendants in cases like this may not fully understand the legal backdrop against which these claims arise.  Federal copyright law generally doesn’t support claims regarding knockoff clothing designs, where design elements are not “separable” from the useful article of clothing itself.   But where a defendant has copied separable design elements (like the illustrations on the pins at issue here, the graphics on the patches sold by Zara, or the dog cartoons that were printed on garments in the Kohl’s case), those elements should generally be copyrightable, as long as they are sufficiently original—a fairly low threshold under current copyright law.  And a “fair use” defense to infringement claims will often be an uphill battle where a defendant’s use of the copied design is flatly commercial in nature and the infringing products are plainly usurping the market for the originals.

It’s also possible that some corporations understand the legal considerations, but may nevertheless copy others’ designs under the assumption that, as a practical matter, they will not be discovered, or even if they are, that independent artists will not have the resources to do anything about it.  But as this and other recent cases illustrate, that assumption is risky.  In our increasingly interconnected global digital marketplace, discovery of infringement is easier than ever, and artists (and their legal counsel) are being more aggressive about taking these cases to court.  And actual litigation may be only one front in the battle; artists have also been effective at publicizing copying allegations in an effort to shame and put pressure on defendants.

And finally, it’s worth noting that, depending on the facts of the case, artist plaintiffs are also often able to advance a barrage of claims beyond “just” copyright infringement.  These additional causes of action—such as statutory claims related to removal or falsification of copyright management information, trademark issues, unfair business practices, or even, as here, mail or wire fraud claims related to the tactics used by alleged infringers—can make for more complex and costly litigation, and can increase the potential financial damages at stake.  We’ll continue to follow this and other similar cases as they develop.