Image: Unsplash

Aritzia is facing an interesting new copyright infringement lawsuit that accuses the fast growing fashion chain of “improperly displaying unauthorized and illegal sculptures” (those are the plaintiff’s words there, not mine) in its stores and as part of one of its latest ad campaigns. According to the complaint that it filed in a California federal court last month, Tangle, Inc. claims that it “owns all exclusive rights” in a set of sculptural works created by its founder Richard Zawitz, “including, without limitation, the rights to reproduce the copyrighted [sculptural] works in copies [and] to prepare derivative works based upon the copyrighted works,” which Tangle says that Aritzia is “willfully and deliberately” infringing.   

Far from unknown works, Tangle asserts in its new lawsuit against Aritzia that since at least 1981, it “has marketed and sold products under the TANGLE brand, and due to substantial and continuous advertising, promotion, and sales, the TANGLE brand has developed considerable goodwill and reputation throughout the United States and abroad.” In furtherance of its operations as “a leading toy manufacturer and distributor,” Tangle alleges that is has garnered “an international reputation for quality, reliability and value,” and has been “credited for many breakthroughs that have occurred in the toy industry, including the TANGLE products.” 

Beyond that, the San Francisco-based company claims that “in the last forty years, [it] and Mr. Zawitz have been commissioned to produce sculptural works embodying the TANGLE copyright registrations” (namely, Reg. No. VA 120-368, VA 1-232-933, VA 1-271-045, VAu 35-392, VAu 35-391, VAu 35-390, VAu 35-389, VAu 35-388, and VAu 35-387) on “numerous occasions, including by fashion powerhouses, such as J.W. Anderson and Vogue Italia, among others.”

Against that background, Tangle argues that Aritzia “has been displaying and continues to display” copycat sculptures in the windows of its retail stores in the U.S. and Canada, as well as in digital media that has been featured “on [the fashion retailer’s] multiple public social media accounts” as part of its Spring 2023 marketing campaign, the latter of which has “served an instrumental role in attracting a larger number of customers to [the mid-market fashion company’s] retail stores and increasing [its] sales and profits.” 

Specifically, Tangle contends that Aritzia’s allegedly infringing sculptures “are identical to the TANGLE sculptures” in several respects: For example, “the infringing sculptures are made of interlocking, 90-degree curved pieces, each of which can be twisted and bent into a multitude of poses. Like the genuine TANGLE Sculptures, most of the infringing sculptures consist of eighteen such interlocking constituent pieces, [and] additionally, the bright pink color and chrome finish [of Aritzia’s sculptures] is identical to the chrome pink color utilized by [Tangle] for [its] Palm Metallic Pink [sculpture].” 

The “striking similarities” between Aritzia’s allegedly infringing sculptures and the TANGLE sculptures “indicate that [Aritzia] committed its infringing acts deliberately, willfully, and maliciously, without regard to [Tangle’s] proprietary rights in the TANGLE copyright registrations,” the plaintiff asserts.

To make matters worse, Tangle asserts that Aritzia has made videos in which its “creative director instructed [Aritzia] retail store employees to assemble the eighteen-part infringing sculptures so that [they] may be featured in the window display of [Aritzia’s] retail stores,” and in the process, used Tangle’s “tagline regarding ‘possibility, flexibility, and multiple viewpoints’ … and [made] specific mention of the 18 constituent parts,” which it says “further demonstrates [Aritzia’s] willfulness in producing unauthorized copies of the TANGLE sculptures, as well as [its] presumptive knowledge of the existence of the TANGLE sculptures and the TANGLE copyright registrations.”

Aritzia window display (left) & one of Tangle, Inc.’s toys (right)

With the foregoing in mind, Tangle sets out a claim of copyright infringement, asserting that Aritzia “has directly copied [its] copyrights for the TANGLE sculptures” – or alternatively, its “infringing sculptures are strikingly similar, or at the very least substantially similar, to [Tangle’s] copyrights for the TANGLE sculptures and constitute unauthorized copying, reproduction, distribution, creation of a derivative work, and public display of [its] copyrights for the sculptures.” 

(Certain language in the complaint suggests that Tangle is making – and potentially could make – a trademark infringement claim here, as well, namely, “due to substantial and continuous advertising, promotion, and sales, [it] has developed considerable goodwill and reputation throughout the U.S. and abroad,” and Aritzia is “trading upon [that] reputation and goodwill by displaying sculptures that are strikingly similar to [Tangle’s].” However, the plaintiff limits its complaint to a single copyright infringement claim.)

In addition to actual damages, Tangle says that it is entitled to receive either the profits made by the Aritzia in connection with its alleged infringement or enhanced statutory damages, as well as attorney’s fees and costs. 

An Aritzia spokesperson told TFL, “We are currently reviewing this matter and the facts of this case. These sculptures were created by Aritzia’s in-house designers who strive to create an Everyday Luxury, aspirational shopping environment for our clients. Boutique visual displays are seasonal in nature and have been taken down in the normal course.”

SOME CONTEXT: The lawsuit comes as Vancouver-headquartered Aritzia is doubling-down on the U.S. market after “winning over American teens and 20-somethings with a playbook that looks out of step with today’s often bleak retail environment,” Bloomberg stated early this year, making note of the retailer’s focus on its brick-and-mortar outposts and “flashy retail concepts.” The retailer, which touts itself as an “everyday luxury” brand, reached $1.5 billion in sales in 2022, driven, in part, by an explosion in popularity among millennial and Gen-Z consumers on TikTok. 

The case is Tangle, Inc. v. Aritzia, Inc., 3:23-cv-01196 (N.D. Cal.)