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Posted July 21,2016

Zara accused in plagiarism


Tuesday Bassen, an artist from Los Angeles, who created designs for many famous brands, including Nike, Adidas, Playboy, The New Yorker, published in her Instagram information that sheds light on the unauthorized use of her works, which was copied by the Spanish giant.

Работы Tuesday Bassen, в виде значков и принты на вещах Zara Tuesday Bassen pins and prints by Zara

The artist learned about this fact from her fans who sent her “hundreds of messages” and then asked the lawyer to file a claim. Most of all artist was outraged with the response, which her representative received from Zara : “We reject your claims here for reasons similar to those already stated above: the lack of distinctiveness of your client’s purported designs makes it very hard to see how a significant part of the population anywhere in the world would associate the signs with Tuesday Bassen. This is our firm view, and being fully aware of the 3rd party notifications that you have brought to our attention. In this last regard, please note that such notifications amount to handful of complains only; when it is borne in mind that millions of users worldwide visit the respective websites monthly (Zara: 98,000.000 average monthly visits last year, Bershka: 15.000.000 average monthly visits last year), the figures clearly put those few notifications into sharp perspective.”

Zara has rejected all accusations arguing that “the alleged design does not have the distinctive strength anywhere in the world, it cannot be associated with Tuesday Bassen» finally stating that “98 million people know what Zara is”, implying that no one knows her as an independent artist.

Thus, Tuesday Bassen said she was discouraged, “Zara said: “We are a giant corporation, and you’re just an artist, so you can not do anything, because no one knows about you. Zara knows that I am in fact powerless, because I have less money than they have.”

Well, Zara arguments that Bassen’s design is “too simple” to be under the protection are puzzling. It seems, that Zara has forgotten that original illustrations are protected as soon as they are created and “fixed in a tangible medium”.

In the area of ​​intellectual property there is a problem, which is called the “doctrine of the idea-expression” (idea-expression dichotomy) according to which if there is limited number of ways to express an idea or bring it to work, the expression of such ideas is not a subject of protection as well as ideas, they can not be copyrighted. However, Tuesday Bassen illustrations are distinctive and intricate details, such as the inscription «Erease you» on the eraser ( “Eraser”) and «Keep out» written on the diary with a lock-heart, so this doctrine can not be applied in this case.

The statement that no one in the world knows that Bassen sells her works in its own online store – has absolutely no value. The recognition of “common knowledge” can be an argument in the debate about trademarks (names, logos or packaging elements) but certainly not in dispute of copyright law, which regulates artistic works.
 
Using these arguments, Tuesday Bassen has all the chances for a successful legal battle with Zara. The artist is going to protect all of her works, it will not be cheap, but it will help in the long run. In the future she is going to compete with the industrial giant, so we’ll keep an eye on this matter.

Maxim Popov
Legal Adviser