Tori LaConsay's Mural
People were mad that H&M was so flippant in their response. Then, the next day, H&M insisted they were working with LaConsay. They said it was a private matter and that they would handle it with her directly. Great. Problem solved, right?
Wrong. Tori contacted Regretsy around 3 February to give them the update on those private negotiations.
It seemed like this was going to resolve quickly, as H&M were initially willing to offer an apology. But as discussions continued, H&M began to revise their position. They suggested that an apology would only be made as a sort of “favor” to me. Things did not improve from there.
They then implied that because the items were not being sold in the U.S., they had no responsibility to own up to the theft, manufacture, and sale of designs that they didn’t license.
Instead, they proposed a licensing agreement that would only take effect after they had sold all the products they had already made without permission. They even gave me a “suggested” media statement, wherein I would publicly claim the agreement was amicable, and that I was “very happy” about it. Obviously, I was not.
So, H&M said “our bad, but it’s actually good for you. Besties?” and expected the problem to go away. How many victims of theft been duped by this H&M proposal?
Let me gaze into my crystal ball. H&M would have not made another “You Look Nice Today” product after they sold their last doormat/pillow. Tori would have been told they chose not to continue the line as sales weren’t good enough. H&M would get away with blatantly stealing from an artist because the artist agreed to a future licensing agreement that never existed.
Tori’s not an idiot. She contacted Regretsy and the story blew up again.
Eventually (and by eventually, I mean the very next day), H&M reversed their decision. They contacted Tori LaConsay again and did the right thing (after two bouts of public scrutiny). H&M’s legal department contacted Tori’s lawyer to start negotiations on an actual deal. They also offered to donate $3000 to an animal charity Tori is involved in and the remainder of the stock to charitable organizations. They aren’t earning any more money off of Tori’s artwork because they realized they weren’t going to get away with it.
There are a few fundamental issues at play here that make this whole ordeal an interesting case.
First, H&M’s defense was international copyright law differences. Here’s the thing: just because you’re selling your unlicensed dolls/doormats/caftans in a country that does not recognize US copyright law does not mean that the copyright owner can’t shut you down. You still don’t own that original image/idea to be making the decision to sell in your country. All they need to do is file suit in your court system to make the products go away. It won’t work for small artists like Tori LaConsay, but it will work for even moderately sized companies with legal divisions.
Second, if an H&M UK product line was being stolen by another company in the US, I can guarantee you they would be sending a team of lawyers to shut down the other company’s production. No amount of “but we were inspired by your image” or “your item isn’t registered in the US” would stop H&M from relentlessly pursuing damages for the theft.
Third, isn’t it funny how H&M didn’t care about Tori LaConsay until one of their major PR tools blew up? Until people were vowing to never shop at H&M again and making it so that no one could visit the Facebook page without seeing this story, H&M refused to admit any responsibility. Even then, their first (and second, and third) action was to deny everything. They tried to claim that they might have been inspired by the original artwork but so what? Everything on the Internet is free and they changed it enough to skate by.
There are other issues in play here that I’m not going to get into. International enforcement of IPR law is tricky as the laws rarely line up. Retroactive damages are up to a court to decide and are rarely handled without both sides throwing a lot of money into legal fees. Though any original artwork in the US is protected as soon as it’s created, any work not registered with the proper government office is hard to win with.
I said it before and I’ll surely say it again. The problem isn’t just that ideas are stolen. The problem isn’t the disparity in international law and the influence of cash flow on thieves winning cases.
The problem is that the existing laws are misunderstood and not acted upon properly. Copyright (trademark, etc.) exists to boost innovation. It was created to protect artists/inventors/etc. from having their ideas stolen and to create an incentive to innovate in all industries. IPR was designed to give these creative people some financial security to keep creating but not stop the idea from ever being available to the public.
Now, it’s all about money. Your family can live off of your ideas for quite a long time (seventy years) if you die without ever becoming a fully fledged company but have a successful copyright in your possession. Corporations make out even better, able to hold ideas from public use and further outside development for up to 120 years.
How does this relate to Tori LaConsay’s sweet mural in Georgia? Simple. Until she’s long gone, no one is allowed to take her idea and profit off of it without her permission. H&M learned the hard way how willing people are to protect the work of artists from greedy corporations. Hopefully, they’ll think twice before thieving again in the future.
Thoughts? Love to hear them.