Zara is coming under fire for its latest foray into shameless copying. Indie artist Tuesday Bassen, whose clients have included Playboy, The New Yorker, United Nations, Nike, and Adidas, among others, took to her Twitter account on Tuesday to call out the Spanish fast fashion giant and shed light on its unauthorized use of her copyright-protected work, including an array of original pins that Zara has allegedly copied and affixed to a number of styles of garments.
Speaking exclusively to The Fashion Law, Bassen, who has been making illustrated products for several years and as of 2014, began making and selling accessories, including enamel pins and patches, said: “My company was borne out of my editorial illustration career, when I decided to pursue products as a way to connect directly with illustration lovers instead of art directors. In late 2015 I began making LA produced clothing based on my original illustrations. Since then, I have been featured in several major publications, including an article in Teen Vogue about being one of the New Faces of Feminism.”
Bassen, 26, said she came across the trove of copies of her work that Zara has been utilizing “through fans, who have sent hundreds of whistleblowing messages to [her] privately.” Since discovering the copies, Bassen says, “My lawyer reached out to them with the Keep Out, Heart Lolli, and Girls Pennant designs (before we discovered the Erase You copy) and they responded with images of generic heart lolly photographs saying that my work was too simple and also that basically no one would know it was me, because Zara gets 98,000,000 visitors and I'm an independent artist.”
An excerpt from the letter Zara's counsel sent to Bassen's attorney
Zara's arguments that Bassen's work is "too simple" to protect and that it is unattributable to her ("basically no one would know it was my work") present interesting but misplaced issues. Primarily, it seems Zara is looking past the fact that original illustrations are subject to copyright protection as soon as they are created and “fixed in a tangible medium” in legal terms. Note: in accordance with copyright law, the level of "originality" required for protection is rather low.
Sure, there is the merger doctrine, a caveat to copyright protection that holds that if there is only one conceivable way or a drastically limited number of ways to express and embody the idea in a work, then the expression of the idea is not copyrightable because ideas may not be copyrighted. Given that Bassen's illustrations consist of intricate details, such as the "Keep Out" and heart-lock designs on the diary (as opposed to a more simplistic drawing of a diary) or the "Erase You" writing on the eraser (as opposed to a straightforward drawing of an eraser), which were all re-created by Zara, this is arguably not an applicable exception. There are certainly ways of depicting the aforementioned ideas - a journal, an eraser, etc. - without including the details included in Bassen's works, suggesting that the merger doctrine may not apply in the case at hand.
As for the issue of whether the general public can attribute such works to Bassen, who sells her designs by way of her online store, as well as “in major retailers such as Urban Outfitters and Nasty Gal," this is arguably irrelevant point, as well. Such “secondary meaning” or source identification is, in fact, a prerequisite for trademark protection, not copyright protection, the latter of which is at play here. The purpose of trademark law is to protect source identifying marks, such as names, logos and/or elements of product packaging, in order to allow consumers to identify a particular business as the source of goods or services. This is distinct from the aim of copyright law, which is to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
With these two arguments bearing little merit in the hypothetical case at hand, it seems Bassen may have a substantial legal claim against Zara if she has the resources to fight the retailer, whose owner, Armancio Ortega, occupies the number two spot on Forbes’ Richest People in the World list.
Speaking of the copying and Zara’s legal counsel’s response, Bassen says: “I felt incredibly disheartened that Zara essentially said, ‘We're a giant corporation and you're an independent artist, so you have no base and can't do anything because comparatively no one knows about you.’ I hate that I've had to spend thousands of dollars to even get that response and that Zara knows I'm essentially powerless because I have less money to defend myself than they do.”
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Of her next move, Bassen says she is working to federally register her existing copyrights and preparing to initiate a copying lawsuit against Zara: “My next course of action is to finish copyrighting everything in my store, which is also costly, but will help in the long run. I plan to further press charges, but even to have a lawyer send a cease and desist letter to Zara has cost me $2,000 so far. I want to point out that most artists don't even get this far. The 'luxury' of spending $2,000 for a lawyer to write a letter is something most artists cannot afford. This is for me and this is for every single artist that can't do anything."
A spokesperson for Zara’s parent company, Inditex, told BuzzFeed News that the firm was recently contacted by Tuesday Bassen’s lawyers who “noted the use of the illustrations in some badges sourced externally and on clothes in its Group stores.”
“Inditex respects any third party’s creativity and takes all claims concerning third party intellectual property rights very seriously,” they continued.They added: “On receiving these allegations, the relevant items were immediately suspended from sale and an investigation opened. In parallel, Inditex’s legal team also contacted Tuesday Bassen’s lawyers to clarify and resolve the situation. Inditex has more than 600 designers in house that create more than 50,000 designs a year, it has the highest respect towards each individual’s creativity and will investigate this specific case to its end.”
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UPDATE: The copying at hand does not just stem from Bassen's work, a dozen or so other indie artists have been targeted by the Spanish fast fashion giant, as indicated in the chart below.