Zara's Art Theft: Unknowing Law Breakers?

Zara has been accused of stealing designs from independent artists. LA-based artist Tuesday Bassen noticed that the Spanish clothing brand had been using designs similar to hers. She uploaded an image to Instagram that compared the brand's creations to her own products. Bassen believes that the retailer copied four of her designs. She contacted Zara, and they rejected her claims, saying her work lacked distinctiveness.

Adam J. Kurtz, a New York-based designer, then made a collage detailing other examples of Zara's apparent plagiarism. Kurtz created a webpage called Shop Zara's Art Theft Collection that compiles stolen work and links them to the original artist's page.

Over 40 independent artists and designers have come forward accusing Zara of plagiarism. The artists involved are taking steps towards legal action against Zara.

Zara's defence

Firstly, Zara could argue that the artworks in question lack distinctiveness, and therefore do not infringe on any copyrights. They could claim that the designs are not similar enough to warrant copyright infringement claims and that certain phrases and shapes used in the artworks are part of the public domain. This defence seems to be their primary legal argument, as evidenced by their response to Tuesday Bassen's cease-and-desist letter.

Secondly, Zara could highlight the difference in scale between themselves and the indie artists. They could argue that only a small number of complaints have been made relative to their massive customer base. This implies that the impact of the alleged design similarities is negligible and that most consumers do not associate the designs with the original artists.

Thirdly, Zara could emphasise the complexity of intellectual property rights in the fashion industry. They could argue that fashion design often involves drawing inspiration from various sources and that exact boundaries between inspiration and plagiarism are difficult to define. This defence could be particularly relevant given that fast fashion retailers like Zara often replicate trends and designs from high-end fashion brands.

Fourthly, Zara could attempt to shift the blame to external suppliers. In their statement to Buzzfeed News, they mentioned that the illustrations in question were "sourced externally". This suggests that they may not have been directly involved in the creation of the allegedly plagiarised designs and could try to redirect responsibility to their suppliers or vendors.

Lastly, Zara could offer to resolve the situation through out-of-court settlements. They could propose financial compensation or collaboration opportunities with the affected artists as a way to avoid lengthy and costly legal battles. This approach could be presented as a goodwill gesture and a recognition of the artists' creativity.

It is important to note that these defences do not necessarily justify Zara's actions or excuse any unethical behaviour. The defences are presented here as potential legal and strategic arguments that Zara could employ in response to the accusations of stealing artists' designs.

Artists' legal options

Artists have several legal options to protect their work and seek compensation in the event of theft.

Firstly, it is important to note that all original artwork is automatically protected by copyright law, and artists do not need to register their work to have copyright protection. However, registering artwork for copyright protection before it is stolen can significantly strengthen an artist's legal position and increase the amount of compensation they are entitled to. Registering artwork makes it easier for officials to determine when the work was created and can make it more difficult for offenders to claim that the work was created by someone else.

If an artist discovers that their work has been stolen, they can take several steps to address the issue. They can start by gathering information about the infringement, including when the offender first started using their art, how many pieces they have stolen, and how much profit they have made from it. This information can be used to support any legal action the artist may choose to take.

Artists can then decide on the appropriate course of action. For minor infringements, such as using an image of a painting in a personal blog, a simple request to take down the image or link to the artist's page may be sufficient. However, in cases of more serious infringement or commercial use, stronger legal action may be necessary.

One option is to send a "cease-and-desist" letter, which is a formal notification to the offender describing the misconduct and demanding that they stop. Artists can also send a "take-down" notice under the Digital Millennium Copyright Act, which requires online service providers or internet service providers to remove the infringing content. This option is often easier and less costly than filing a lawsuit, especially if the infringing content is hosted in the United States.

If the infringement is significant and the artist wishes to pursue legal action, they may need to consult an attorney and file a copyright infringement lawsuit. This process can be costly and time-consuming, and the artist will need to register their artwork with the relevant copyright office before proceeding. It is important to note that the laws and procedures for addressing artwork theft can vary depending on the country and jurisdiction, and artists should seek legal advice specific to their situation.

Artists' financial struggles

While the entertainment industry is associated with multimillion-dollar deals and record-breaking streaming numbers, the reality is that many independent artists struggle to make ends meet. This is due to several factors, including limited sources of income, uncertain revenue streams, lack of financial management skills, and the high costs of producing and marketing art.

Limited Sources of Income and Uncertain Revenue Streams

Independent artists often have limited sources of income and unpredictable earnings. Unlike mainstream artists, who benefit from label support and major promotional campaigns, indie artists rely on their own efforts to generate income. As a result, their revenue streams may not be consistent, with earnings fluctuating from month to month. This makes budgeting and financial planning challenging.

High Costs of Producing and Marketing Art

Producing art can be expensive, with equipment costs, recording studio fees, instrument maintenance, marketing materials, and other related expenses adding up quickly. Many artists find themselves taking on loans or credit card debt to cover these costs, further complicating their financial situation.

Lack of Financial Management Skills

Financial management is crucial in the art world, but many artists are reluctant to invest their own money in their careers, which can lead to financial problems and slow down their career development. Seeking professional financial advice can be beneficial, but it is important to consider the cost of such services.

Limited Exposure and Competition

Independent artists often struggle to gain exposure and recognition in an industry dominated by established players. They must be proactive in marketing themselves and seeking opportunities to showcase their work. Additionally, the rise of streaming platforms has made it more difficult for artists to monetise their music, leading to a decline in revenue from album sales.

Low Average Incomes

Despite the promising revenue figures for the "independent artists, writers, and performers" industry, the average incomes for individuals within this sector are relatively low. Data from the Bureau of Labor Statistics reveals that the median annual wage for independent artists, writers, and performers was just $32,900 in May 2020, significantly lower than the median annual wage for all occupations.

Strategies for Overcoming Financial Struggles

To overcome financial struggles, artists can diversify their income sources by exploring alternative revenue streams such as merchandise sales, licensing opportunities, and teaching. They can also apply for grants and residencies, which can provide financial support and resources to create. Additionally, networking and collaborating with others in the art world can lead to new opportunities and cost-sharing. Effective budgeting and financial planning are also key to managing finances and preparing for the future.

Zara's parent company's response

Zara's parent company, Inditex, has responded to the accusations of copyright infringement. In a statement, the company said:

> Inditex has the utmost respect for the individual creativity of all artists and designers and takes all claims concerning third-party intellectual property rights very seriously. Inditex was recently contacted by Tuesday Bassen's lawyers who noted the use of illustrations in some badges sourced externally and on clothes in its Group stores. The Company immediately opened an investigation into the matter and suspended the relevant items from sale. Inditex's legal team is also in contact with Tuesday Bassen's lawyers to clarify and resolve the situation as swiftly as possible.

The statement also emphasised Inditex's commitment to responding to market trends and consumer demands quickly, which is a core part of their business model. However, it is worth noting that this is not the first time Zara has been accused of stealing designs. In 2017, Zara Home Belgium was convicted of plagiarism by a Brussels Court. Additionally, in April 2018, MaXhosa by Laduma took legal action against Zara for copying its designs, and in 2022, Zara was sued by a small clothing company, Tara Sartoria, owned by Vietnamese citizen Tara Nguyen.

Other companies accused of plagiarism

The Trump family

In 2016, Melania Trump was accused of plagiarising a speech she gave from Michelle Obama. Commentators and Obama fans alike quickly jumped on the similarities, though it was Melania’s speechwriter, Meredith McIver, that admitted ‘borrowing’ from Michelle Obama’s speech. In May 2018, Melania was again accused of plagiarism, with her “Be Best” booklet containing striking similarities to one published during Obama’s time as president.

Japanese Olympic Stadium

The 2020 games in Tokyo faced accusations of plagiarism regarding the logo and the designs of the new stadium. Similarities in design were cause for concern enough, but the overlap of contractors and a very quick turn-around for a new design has flagged up some serious accusations!

Jane Goodall

Well-known primatologist Jane Goodall was accused of blatant plagiarism in her book Seeds of Hope: Wison and Wonder from the World of Plants. With text copied and ‘borrowed’ from pretty well-known sources like Wikipedia, it wasn’t too much of a surprise when it turned out that much of her answers from interviews and more were also copied from alternate sources.

Roots – Alex Haley

Alex Haley’s novel Roots was accused of plagiarism. A book titled Jubilee bore a striking resemblance to some of the passages in Roots, and author of the former, Margaret Walker Alexander, was going to make sure the world knew. The court found Haley guilty, but there wasn’t much they could do, as Jubilee was unprotected. A later accusation of plagiarism from a novel The African by Harold Courlander was protected.

Jayson Blair – The New York Times

In 2003, an editor at the San Antonio Express-News noticed similarities between content Blair had ‘written’ and some from one of their journalists. An investigation revealed that, of the 73 articles that he had written, at least 36 of them were plagiarised or contained other less-than-okay behaviour. Of course, he was forced to resign as a journalist and is unlikely to have a job in the industry any time soon.

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