Guest blogger Emily Danchuk is an intellectual property attorney and founder of Copyright Collaborative, which is designed to educate, empower and unionize artists in the fight against copyright theft.
Part One: Onboarding with Anthropologie, West Elm and the Devil
In recent years, companies like Anthropologie, West Elm and Crate & Barrel have begun collaborating with artists and designers, realizing that the negative consequences of (and press from) wholesale infringement outweigh the benefits in our politically-correct world today.
When a consumer breezes through the furniture, clothing and homewares sections of these companies’ catalogs, they can now see pages dedicated to genuine collaboration with artists, with write-ups about the artists and touchy-feely love for the creators of original designs. Everyone is happy and making money, right? We’re all onboard, now that the Gods are working with the artists they used to steal from. Right? Well, let’s step back.
Recently, I was hired to review some Anthropologie vendor agreements for a client. It’s not my first time at the rodeo, and I’ve reviewed a number of these types of Godly agreements for other clients before.
I can tell you firsthand that it is a frustrating endeavor, with one-sided, horribly termed agreements that don’t allow for much artist pushback. One is reminded of the clichéd phrase, “My way or the highway.” More often than not, proposed deals are sent as concrete, PDF agreements that have a pretty sure-fire way of communicating the “take it or leave it” attitude of these entities.
So back to my client. She had me take a look at Anthropologie’s “Vendor Non-Disclosure” agreement for her upcoming relationship with them. While reviewing the pretty typical confidentiality clauses in the agreement, I came across the following language:
“You (the Vendor), upon sale of product to the Company (Anthropologie), thereby assign to the Company any and all right, title and interest in the Vendor Designs, copyrights and intellectual property incorporated therein.”
Sorry, what?!? This is a simple confidentiality agreement in connection with vendors! For those not in the “know,” a vendor agreement is simply a supplier agreement, whereby (in the normal, non-Anthropologie world) an artist creates and manufactures a product and sends it to a distributor to sell via retail.
And a confidentiality agreement is an agreement to keep any trade secrets, know-how and company information to yourself. This is not a license agreement, this is not a collaboration agreement where the retail distributor is buying the rights to the designs.
So how does Anthropologie sneak this wholesale copyright transfer provision into the agreement, where the artist is giving away rights to their designs? In a standard Confidentiality/Non-Disclosure agreement that has nothing to do with intellectual property?
I’ll tell you how. Anthropologie and its kin are the hot quarterbacks from your high school days. You know, that guy who grew facial hair six months before every other male with a twinkle in his eye and perfectly mussed-up hair. He was drop-dead gorgeous, and he knew it. Well, that’s Anthropologie, and they know it. So, you, the artist, are a dime a dozen, and if you don’t want Anthro love, stand aside so the other drooling girls can get in line.
While Anthropologie and Williams-Sonoma do a great job fronting as altruistic businesses, collaborating away with the artistic community and recognizing the “true talent” in the room, the mess behind the scenes is daunting and one-sided, with license fees of 6%, if the artist is lucky.
So how do they get to continue screwing artists? Because artists let them. Many artists are (understandably) so excited for the opportunity and exposure that these companies lend that they don’t see the greedy intent to exploit. And they don’t feel that they have a choice. They either sign the agreement as is, or run the risk of becoming the nerdy girl sneaking back into the woodwork. It’s like high school never ends!
If we lived in a fair world, Anthropologie (and yes, I harp on them in particular) would be weighing the options of treating its artists with respect, or selling white, undecorated plates and unoriginal pillow lines. They would realize that it’s truly unfair to pay an artist 6% of sales (minus taxes, shipping, discounts, returns, blah blah blah) when the only thing they bring to the table is some quick, Chinese manufacturing and a blank canvas.
I vote that we at least acknowledge that the quarterback has got some acne and a bit of halitosis, instead of treating it like a God among men. I vote that artists start standing up for themselves, their beautiful artwork and the immense talent that they bring to this world, and demand fair treatment in their commercial dealings with these entities and similar bullies.
Once that happens, a whole new appreciation will have the opportunity to present itself. But until then, make sure you have an attorney review your deals with the devil.