This article is part of a series titled Let's Have and Ar(t)gument. This series is focused on exploring attitudes concerning what art can and should be. Furthermore, the series is designed to spur heated debate about 'hot topic' issues within the art world. Note: 'Heated debate' does not translate to petty name-calling. Vent all you want... but DO try to remain civil. Please sign up for The Art Edge newsletter if you enjoy this series.  The author’s views are entirely his or her own and may not reflect the views of FASO.

Is this a case of copyright infringement? We shall see.

Jezelbel recently broke a story concerning artist Lisa Congdon and copyright allegations that she has claimed against Cody Foster & Company. Long story short, Lisa Congdon claims that Cody Foster's Nordic inspired Christmas ornaments infringe upon several of her illustrations (comparison above). The story surrounding the alleged infringement has gained momentum. We can all learn from this situation -- and yes... it is perfect for a good ar(t)gument about copyright law.

Some background information about the alleged infringement:

Cody Foster is known for designing holiday ornaments, collectible crafts, and various home décor items. Concerning the inspiration for his designs, Foster has stated, "When designing, I draw inspiration from many sources but especially from offbeat vintage pieces and unconventional antiques.". In other words, Foster openly admits that he obtains ideas from other sources (most artists and designers do the same thing, right?).

Lisa Congdon, an influential artist and illustrator, suggests that there is no way that Cory Foster could have had the same idea without having viewed her illustrations first. She states, "It came from my imagination. There are no photographs online of actual animals wearing jackets just like this. The patterning and elements on the jackets are very emblematic of my style. You will see them repeated in a lot of my artwork. The only way Cody Foster could have transferred the same imagery to their ornaments is by using my artwork as reference.".

Here are my thoughts on the alleged infringement:

Unfortunately for Lisa Congdon, examples of these jackets / saddles -- including some of the design elements that she claims as her own -- are present in imagery that dates back to Norse mythology and beyond. I've seen examples in various books. Furthermore, you can find examples of saddled Yule Goat's, Tomte (a dwarf or gnome like creature) riding upon saddled reindeer or other animals, and various animal spirits that wear decorative gear throughout Scandinavian folklore as well. Congdon does not own this idea... and you can't copyright an idea in the first place.

The idea itself -- various animals wearing decorative jackets or saddles -- is nothing new. One could almost say that the idea is universal in the sense that it is present within MANY cultures / civilizations. In fact, you can find examples of saddled polar bears within the context of Inuit mythology. The concept is simply NOT original. Congdon has clearly been influenced by a number of cultures and mythological creatures. For her to suggest otherwise is absurd.

These visual traditions, if you will, have 'fueled' fantasy novels and films for decades. Think of the Warg-riders (beasts that are like HUGE saddled wolves) in Tolkien's books OR the saddled polar bear in Northern Lights (published as The Golden Compass in the U.S.), the first novel in Philip Pullman's trilogy His Dark Materials. The books AND films were heavily influenced by folklore from throughout the world. Again, you can't copyright the idea of various jacketed / saddled animals itself... and even if you could -- considering how universal it is -- one could easily make a good case for 'fair use'.

Who owns the pattern / design elements?

Lisa Congdon may have a better case against Cody Foster concerning the specific designs of the jackets / saddles on the animals. It may still be an uphill battle for her though. Furthermore, the use of specific symbols / designs -- in this context --  is more of a trademark issue when you get down to the line. As noted earlier, Congdon stated, "The patterning and elements on the jackets are very emblematic of my style. You will see them repeated in a lot of my artwork.". NOTE: you can't copyright an artistic style... and the design / pattern elements I observed are clearly inspired by past cultures even though Congdon claims that, in her response to the alleged copyright infringement, the designs are strictly from her imagination. Are they Lisa? Really? As mentioned, this aspect of the situation may fall within trademark law anyway -- you can't copyright symbols. 

In fact, one could suggest that some of the design elements appear to be 'ripped' from indigenous peoples from within the boundaries of the present-day United States. As mentioned earlier, I can also see elements of Nordic and Scandinavian design. In other words, many of these design elements are universal -- they are visually represented within many cultures and traditions. Lisa Congdon does NOT own them. For that reason alone she may have a hard time winning a case against Cody Foster & Company.

Note: It is difficult to see how the patterns and designs are placed on the Cody Foster Nordic series ornaments. The images are conveniently smaller than the images representing Lisa Congdon's illustrations. From what I can tell... they do appear to be slightly altered compared to Congdon's designs. BUT, as mentioned, many of these patterns and designs are universal. Cody Foster -- assuming this goes to trial -- will most likely claim that he may have been inspired by the same culture / mythological traditions that clearly inspired Congdon. You can't own a source of inspiration in this context.

A judge (or jury) will decide.

Several writers have lashed out against Cody Foster since the Jezelbel piece was published. For example, Consumerist has attempted to reveal further examples of alleged copyright infringement involving Cody Foster. Some of the comparisons are amusing because if you agree with Consumerist... well... I guess only one person can make decorative stuffed owls, dogs, or cupcakes. Furthermore, most of the articles / comments about this situation suggest that ideas are protected. They are NOT. You can't copyright an idea.

In addition to the above, many blog authors have described Cody Foster as a 'thief', 'copyright infringer', or worse. It doesn't work that way, folks! Lisa Congdon's claim is nothing more than an allegation until a verdict is decided by a judge or jury. In fact, Foster -- as an individual -- could easily raise courtroom Hell over some of the things that have been said about him. He is not exactly a public figure... and the people writing about this don't have the same protection that newspaper journalists enjoy. Call it what it is at this time... alleged copyright infringement.

Some clarification:

I'm not exactly siding with Cody Foster. In fact, I've never heard of him or his company until an associate of mine sent me a link to Congdon's blog. I strongly support copyright law. However, this situation -- from both sides of the fence -- involves a lot of 'borrowed' cultural, mythological, and design elements. My experience dictates that Congdon does not have much to walk on IF Foster's legal team connects those dots. The Ace under her sleeve is the the similarity of the symbols used on the jackets / saddles... which, as noted above, is more of a trademark issue than a copyright issue.

What say you? Do you think Lisa Congdon's criticism of Cody Foster & Company is deserved? Are we dealing with unique design elements OR patterns and designs that are almost universal in nature? Does Congdon have a claim to the idea itself -- jacketed and saddled animals that are rather common in mythology and contemporary fantasy? Offer your thoughts. Let's have an ar(t)gument.

Take care, Stay true,

Brian Sherwin

Editor of The Art Edge

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