Earlier this week, regretsy posted an exchange that Atlanta-based artist and designer Tori LaConsay had with H&M. It looks as though they’ve blatantly stolen her work without crediting her paying her for it, and are using it on various items in their stores, including pillowcases, towels, and doormats.
In December of 2008, LaConsay painted what she describes as, “a love letter to my neighborhood,” a sign that on one side said, “You Look Nice Today,” and was followed by a heart, and on the other side said, “I’m So Happy You’re Here,” followed by another heart. LaConsay explains that “It was a small gesture that I genuinely hoped would make my neighbors feel good.”
When LaConsay was alerted to their UNfair use and appropriation of her work, she emailed them and received this message in response: “We employ an independent team of over 100 designers. We can assure you that this design has not been influenced by your work and that no copyright has been infringed.”
I haven’t gone to law school, but I did survive “Law School for Visual Artists,” sponsored by the VLA. And based upon what I learned there, it looks as though H&M is guilty of copyright infringement. First, we should be clear that US law is such that the moment that an artist creates a work, it is copyrighted. There is no need to file any paperwork. So, in December of 2008, when LaConsay first painted the sign in Atlanta, she owned the copyright for that work.
And, it seems obvious that someone from the H&M design team saw LaConsay’s work. It’s improbable that two people would have independently come up with such a similar design. And, in reading subsequent statements from H& M, they seem to admit that they may have been, “inspired” by her design, but believe that they did not copy it, because they slightly altered the font and the placement of the heart.
On H&M’s Facebook page, in response to many of LaConsay’s supporters’ postings, they first posted this: “We apologies if anyone should think we have copied, which has never been our intention and also not allowed. We have merely been inspired, after seeing many different varieties with different text messages, to create something similar in a different font, with the use of big and small brackets and the placement of the shaped heart. We are truly sorry if we have led someone to believe that we intentionally should have copied someone else’s creation.” (Grammatical errors in original posting)
So the issue of copyright infringement then hinges on the following:
1) The heart of the matter: is the new work transformative?
2) What is the purpose and character of the use? Educational? Commercial?
3) What is the effect on the market/ value of the copyrighted work?
In their Facebook post, H&M basically argued that by slightly changing the font, eliminating the period, and slightly moving the heart shape, they had transformed the work. I would argue that this is not enough to transform the work, and it’s obviously derivative. What’s more, they’re using their derivative design for commercial purpose. (One more strike against them). And finally, Tori LaConsay is an artist and DESIGNER. Her profile on Yatedo identifies her as “a freelance production manager, copywriter, illustrator, designer.” H&M’s product definitely negatively impacts her market. If she wants to print that design on apparel and household items, they’ve already done so, and sold it, so they’ve devalued her work, and cut into potential customers.
Later, on Facebook, H&M posted again, saying, “We are very sorry for our customer service team’s reply, it is very unfortunate and we apologize for it. We are in contact with LaConsay and will continue the dialogue with her directly.” We’ll see what they offer her. I’ll be rooting for Tori.