The Artist as Underdog

Used with permission of the artist

It was a classic case. Canadian graphic artist Jody Edwards, noted for her realistic and original feather watercolours, spotted some of her artwork printed on shirts for sale at the retail clothier Winners. It turned out that some of the same shirts were also for sale in Canada at Marshalls and Nordstroms, via online retailer Nordstrom Rack. When she contacted both companies, Marshalls said they would stop selling the merchandise while Nordstroms said they were sold out and would not restock. However, if she wanted to pursue payment for her copyrighted work, she was told she would have to go after the supplier, a company called Bella M Inc., based in Los Angeles, and marketing under brand name Vanilla Sugar. Her story was publicized by a CBC “Go Public” report. She had turned to the program for help in tracking down the L.A. supplier, which had as many as eight different company names and thirteen different addresses.

According to the CBC report, through the network’s investigative reporters she was able to make contact with a legal representative of the supplier, which denied that the artwork in question infringed on Edwards’ copyright, but nevertheless offered to resolve the situation “amicably” through a negotiated settlement. It is likely that the retailer in Canada (TJX-parent company of Winners and Marshalls), both of whom stated that they have policies requiring vendors to respect intellectual property laws, put pressure on the supplier to make the problem go away, although according to Ms. Edwards so far there has been no settlement. According to legal experts quoted in the CBC report, Canadian law– unlike US law–does not provide for liability for secondary infringement unless it can be proven that the infringement was done knowingly. All of which left Jody Edwards with little recourse other than either to engage expensive legal counsel in the US to go after the supplier (or possibly retailers, as apparently there were also sales in the US) with threatened legal action, or, as she did, to appeal to a sort of “public ombudsman” for help through the Go Public program. This illustrates the perils of the small artist as the underdog in the digital world where it is all too easy for design and other companies to appropriate content off the internet, seeking forgiveness afterwards if caught but not bothering to secure the proper permission (and making the required licence payment) in advance. It is a widespread problem.

Policing copyright infringement requires constant vigilance on the part of the artist. It is probably no surprise that most infringement goes unnoticed unless the infringed work becomes a commercial success. That is certainly the case in regard to recent music infringement cases, where there is often a fine line between infringement and inspiration. The chances of the actual artist stumbling across copies of their work, as happened with Ms. Edwards, are relatively slight. There are lots of infringing goods out there on the Internet, but again it would take a determined sleuth to track them down. Large companies with significant intellectual property holdings protected by copyright, such as record labels or movie studios, or wealthy artists, have the means and incentive to actively enforce their rights in court. However for “struggling artists” or small businesses, getting and paying for legal assistance is a difficult proposition.

In the US, access to pro-bono legal help for small businesses in the area of intellectual property is available through programs offered by a number of law schools. One such well known program is the Center for Protection of Intellectual Property (CPIP) at the Antonin Scalia Law School of George Mason University in Alexandria, VA. While CPIP handles a range of intellectual property issues, it is a pioneer in the area of copyright support through its Arts and Entertainment Advocacy Clinic which acts “on behalf of underrepresented artists, creators, and small businesses in the arts”. Another similar service is provided by “WALA”, the Washington Area Lawyers for the Arts. Begun in 1983, some 350 of Washington’s top lawyers and law firms participate as volunteers in WALA’s legal services programs, according to the Association’s website.

To my knowledge no such program exists in Canada, although I am aware of two university-based intellectual property clinics, one, the International Intellectual Property Law Clinic run jointly by the University of Windsor Law School and the Mercy Law School at the University of Detroit, the first such program certified jointly by both the USPTO and the Canadian Intellectual Property Office (CIPO), and the other offered by Osgoode Law School in Toronto (IP Osgoode). The emphasis of these programs, important as they are, is not on copyright law however, but rather on technical innovation and assisting start up tech companies to register and protect their patent holdings. Even though some work is clearly being done in this area, there are calls from the legal profession for much more support to be provided as part of a strategy to close Canada’s innovation gap, focussing primarily on patent registration.

Just as the tech community needs assistance to protect its IP assets, protection of copyrights is equally important for the artistic community. But, as the case of Jody Edwards illustrates, there are very few places that the struggling artist can go to seek help. More often than not, the artist is the underdog seeking redress against a system where the odds seem stacked against them.

© Hugh Stephens 2017. All Rights Reserved.

1 thought on “The Artist as Underdog”

  1. Hugh, another fascinating and informative–if also discouraging!–blog post. I don’t know where you find such an eclectic selection of blog topics. Keep them coming. I always enjoy them and pass them on. Cheers! Joy


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