Art Market

11 Artists Sue Fashion Retailer Francesca’s for Copyright Infringement

Isaac Kaplan
Jan 10, 2017 11:34PM

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The tide of copyright infringement cases brought by independent artists against major fashion companies shows no signs of abating with the new year. In a case being dubbed “pinfringement,” a group of 11 international artists sued women’s clothing retailer Francesca’s on Friday, claiming that the multi-million-dollar company is selling cheap knockoffs of the artists’ enamel pin designs.

The complaint asserts that Francesca’s contracted with two Midtown Manhattan-based manufacturers described as “notorious distributors of knockoff and copycat goods.” It goes on to detail that the companies went so far as to create fake Etsy accounts so as to order and then allegedly ripoff the pins created by the plaintiffs. Along with copyright infringement and similar allegations brought against all defendants, the complaint singles out the two manufacturers—O.K. Originals and Orion—for mail and wire fraud, seeking damages along with an immediate injunction halting sales. (Francesca’s did not respond to Artsy’s request for comment on the allegations.)

The lawsuit, filed by the law firm Kushnirsky Gerber PLLC, charges that the copyright infringement against the 11 artists was “carefully orchestrated and entirely willful.” Reflecting the different styles of the artists, the allegedly knocked-off designs include a pizza slice emblazoned with the words “true-love,” a rotary telephone, and a broken heart. As with other recent copyright infringement cases, social media and the internet have played a prominent role in “pinfringement.” The artists set up a website that includes a series of images comparing the plaintiff’s pins to those sold by Francesca’s. Court documents describe how, in response to the artists’ efforts, O.K. Originals and Orion posted “false information [...] online using fake names and fake accounts” in an attempt to “fraudulently divert attention from their unlawful scheme.”

According to the complaint, this pattern of behavior dates back to the origin of the alleged infringement, when in April 2016 employees of O.K. Originals and Orion created fake online accounts and personas in order to purchase the plaintiff’s pins and subsequently copy them. Such subterfuge was required, the complaint charges, because the two companies had a reputation for infringement, meaning that the artists would not have knowingly sold them pins. When some of the artists discovered the similarity between their work and pins on sale at Francesca’s, they reached out to the company to notify them of the infringement. The complaint says a marketing department representative first replied that Francesca’s was “contacting the vendor that sold us [the Infringing Products] to investigate and address this issue,” only for the same employee to minutes later attempt to “recall” the email. The company subsequently ceased to respond at all despite further requests.

The case comes as enamel pins see a resurgence since their heyday in the 1990s, serving as a potentially lucrative source of business for both independent designers and big brands. (The complaint references mass-produced pins that fetch up to $20 each.) The “pinfringement” lawsuit follows the much publicized case brought last year by some of the 40 artists who charged that Zara was distributing knockoff pin and patch designs. Indeed, according to the complaint, Francesca’s was looking to “capitalize on the current trend” by beginning to sell enamel pins in July of 2016. The document goes on to describe how, as interest in such pins returned in recent years, several of the plaintiffs were contacted by large companies interested in selling their work, only to have those companies turn to O.K. Originals and Orion and “source cheap knockoff versions” (whether Francesca’s is among those who contacted the artists in advance is something that may be discovered as the case progresses).

In copying the artists, the lawsuit asserts that “Francesca’s had actual or constructive knowledge that O.K. Originals and Orion were creating, importing, and distributing Infringing Products and indeed authorized, participated in, and benefited from this infringing activity.” The document also charges that the defendants removed the copyright information included in the original packaging and on the pins themselves. By associating the artists’ work with their brand, the lawsuit charges defendants with violating unfair competition statutes, laws meant to protect both companies and consumers from deceptive business practices. “Consumers viewing the Infringing Products are likely to be confused as to the origin of these goods, and are likely to mistakenly believe that Plaintiff Artists are somehow affiliated with or associated with these goods when in fact they are not,” the complaint states.

By way of recompense, the plaintiffs are seeking an immediate injunction on selling the work, along with actual and punitive damages. The case leaves room for further defendants, listing among those charged with infringement “Does 1-10,” entities that are currently unknown but which are likely to be discovered as the case progresses.

Isaac Kaplan