Business Copyright

Urban Outfitters Rips-Off Designer But Suing is Not So Easy

When executives at Urban Outfitters announced that one of the reasons for their declining sales was that their clothes were no longer fashionable, it seemed like that was a low point of the week. But now it seems that the ailing clothing retailer has compounded their problems by using artist James Soares’ print design on a miniskirt without his permission. While it may seem like an easy case of copyright infringement, as you will see, deciding whether to sue is very complicated.

James Soares took to Tumblr to make his accusation known to the world, creating a potential public relations nightmare for Urban Outfitters. And while that may put pressure on Urban Outfitters, they know what hoops Soares must jump  through to sue them. First, lets look at the infringing material.

Urban Ourfitters commits copyright infringement

While similar designs, the two are not exactly alike. So Soares must use circumstantial evidence to first, show that Urban Outfitters had access to his work. Access is usually not difficult to prove in our Internet driven world. A post to social media with lots of views, and other copying the design to Pinterest or other social media makes access easy to show.

Secondly, Soares must prove that the two designs are “strikingly similar,” that the similarity can only be explained by copying . The designs must, therefore, be so uniquely creative that it would be highly unlikely they could have been created independently. Assuming Soares can get over that high hurdle, he then has to look at the financial risk of initiating the lawsuit; finding an infringement doesn’t always mean that a lawsuit is the appropriate next step.

In this case, there is an added wrinkle; the skirt fabric is not made by Urban Outfitters but bought from a third party supplier, BamBam Cloth. Soares can sue both Urban Outfitters and BamBam. If he wins, Soares would be entitled to the profits both Urban Outfitters and BamBam received from the sales of the skirt and fabric. Remember, we are talking profits not sales. That gives Urban Outfitters and BamBam the opportunity to reduce the sales figure by deducting costs, such as production, shipping, warehousing, packaging, and marketing and a percentage of corporate operating costs. Any good accountant can get the profits down to somewhere in the range of 5%-25%. The attorneys will fight over where on that line the profit falls. The likelihood of each potential outcome will determine the risk/ reward for initiating a suit (legal costs vs. potential revenue).

Unfortunately, that figure isn’t available until after the lawsuit is initiated.  So Soares’ attorneys will make an educated guess, calculating how much of the product sold, the costs of recalling the goods from stores, and the profit range, amongst other elements. Those figures will also help decide how hard the companies are likely to fight. Soares will also have to take into account the cost of litigation. If all seems positive, then the suit can go forward.

Then Soares must decide if he can afford the legal fees.

If Soares registered his work with the Copyright Office, the decision becomes easier since the defendants would be required pay Soares’ legal fees if he were to win. But since only about 2-3% of creative works are registered every year, the likelihood is low. .

Proving copyright infringement is only a small part of the analysis in deciding whether a lawsuit is a good idea.

Even if Urban and BamBam were to pay for the legal fees, Soares must still win at trial. Until then, Soares must pay the legal fees out of his pocket. Under certain circumstances, a lawyer may be willing to take the case on contingency. In that case, Soares would only pay for the “hard costs” such as court filing fees, but all the soft costs, such as the attorney’s fees are paid to the attorney from the proceeds if Soares wins. If he loses, then the attorneys don’t get anything. The reward for an attorney taking that risk can be fairly high; contingency fees are usually around 40% of the total award.

One last thing to consider; copyright infringement is a no fault law. Even though the infringement was BamBam’s fault, Urban Outfitters will still be the primary defendant. They infringed by selling the skirts and posting the skirt design on their site, even if they did it innocently, but more importantly, they have the deep pockets.

On the other hand, the merchandising contract between Urban and BamBam likely contains an indemnification clause, which usually warranties that BamBam is selling a non-infringing product amongst other things.  If a lawsuit occurs that includes Urban Outfitters for actions that were purely due to BamBam, they will have to pay for Urban Outfitters legal fees along with their own. The indemnification will determine Urban Outfitter’s willingness to fight.

So while Soares is up in arms and using Social Media to flock to his side, the PR move will hold very little sway whether the case proceeds.  Soares must decide  whether the risk/reward his high enough to warrant legal action, and if so, whether he can marshal the necessary resources to carry it out. Even with the Internet on his side, that is still a tough call.


About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at or on display at the Emmanuel Fremin Gallery in New York City.

1 Comment

Click here to post a comment

Your email address will not be published. Required fields are marked *

  • I am the one who discovered this link and notified the artist, spires. He thanked me in his own way. While there is no such thing as originality, I believe that creativity is something sacred, that should not be exploited in this manner.


We built Orangenius to help creators succeed. Our comprehensive platform takes the guesswork out of the business of art, so you can focus on creating. Click to see how Orangenius is revolutionizing the creative economy.


The Latest From Artrepreneur

  • A Recruiter’s Advice for your Video or Motion Design Reel

    Creative Circle recruiter Brooks Rowlett sifts through hundreds of motion design reels and video editor portfolios each week. Here, he shares his best advice for motion designers and video editors looking to land their next big gig. The post A […]

  • From Tattoo Artist to Brand Empire: The Rise of the Ink Mogul

    The savvy tattoo artist uses brand recognition to launch a multimedia business. These four artists have leveraged their underground celebrity status to build a brand empire, complete with product lines, book deals, and TV contracts. The post From […]

  • Exploring the Intersection of Art and Technology

    The advent of technology is re-shaping the practice of art. These educational institutions, artists, and startups are exploring art and technology's convergence in today's increasingly digital world. The post Exploring the Intersection of Art and […]

  • Work with an Artist Mentor to Get Your Career on Track

    Many of the world's most recognized artists sought inspiration and guidance from their peers. Gain insight into your practice and learn about the business of art by finding an artist mentor whose career aligns with your own vision for success. The […]

  • Why Artists Need to Make Copyright Registration a Priority

    Sharing, posting, and distributing your work online is easier than ever - but often times, visual artists find themselves dealing with online piracy issues as a result of that practice. Initiating a copyright registration routine can curb the […]

  • How Artists on Social Media Can Grow Their Following

    By sticking to the tenets of the social media pyramid, artists on social media can develop an engaged audience. The post How Artists on Social Media Can Grow Their Following appeared first on Artrepreneur. […]

  • How [and Where] to Submit an Art Fair Application

    Submitting an art fair application doesn't have to be an arduous process. We break down which fairs are currently accepting submissions, and how you should apply. The post How [and Where] to Submit an Art Fair Application appeared first on […]

  • The Paperwork Behind Your Art Business [Part I]

    In this ongoing series, we'll review the various documents needed to get your art business up and running. First up: Crafting your artist proposal. The post The Paperwork Behind Your Art Business [Part I] appeared first on Artrepreneur. […]

  • A Creative Career Coach Outlines a Strategy for the Working Artist

    Marc Zegans coaches artists planning the next move in their art careers. Here, he shares his proven approach for developing your practice as a working artist. The post A Creative Career Coach Outlines a Strategy for the Working Artist appeared first […]

  • How One Artist Uses Instagram to Land Consistent Illustration Gigs

    Illustrator Maria Luque's secret to landing a steady stream of illustration gigs? Just be consistent and post regularly on Instagram. The post How One Artist Uses Instagram to Land Consistent Illustration Gigs appeared first on Artrepreneur. […]

  • Artists Who Failed – And Found Success Anyway

    Some of the world's most successful artists weren't always so revered. Meet five artists who failed to develop their art careers during their lifetime. The post Artists Who Failed – And Found Success Anyway appeared first on Artrepreneur. […]

  • How Do Online Content Moderation Policies Treat Nudity in Art?

    As Facebook's online content moderation policies come under fire, we review creative platform Orangenius' policy on nudity in art. The post How Do Online Content Moderation Policies Treat Nudity in Art? appeared first on Artrepreneur. […]

  • Self Employed? Five Ways To Get Into the Creative Habit

    Self-employed artists don't always leave room for inspiration. Boost productivity and get into the creative habit with these proven strategies. The post Self Employed? Five Ways To Get Into the Creative Habit appeared first on Artrepreneur. […]

  • A Creative in a Corporate Organization: Related Group’s Art Department

    In this ongoing series, we explore the creative roles available in the most unlikely of corporations. Our first installment talks to Patricia Hanna, the Art Director of Related Group. The post A Creative in a Corporate Organization: Related […]

  • Five Alternative Income Strategies for Independent Artists

    Independent artists shouldn't have to go hungry. We explore five alternative income streams to keep your art business on track. The post Five Alternative Income Strategies for Independent Artists appeared first on Artrepreneur. […]