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Cody Foster & Co., Inc. v. Urban Outfitters, Inc.

United States District Court, D. Nebraska

July 16, 2015

CODY FOSTER & CO., INC., a Nebraska corporation; Plaintiff,
v.
URBAN OUTFITTERS, INC., a Pennsylvania Corporation; ANTHROPOLOGIE, INC., a Pennsylvania Corporation; and URBN UK LIMITED, a United Kingdom Corporation; Defendants.

MEMORANDUM AND ORDER

CHERYL R. ZWART, Magistrate Judge.

This matter is before the court on the following motions:

• Defendants' Motion to Compel, (Filing No. 89);
• Defendants' Motion to Reconsider, (Filing No. 110), the undersigned's order, (Filing No. 105);
• Defendants' Motion to Compel, (Filing No. 139);
• Plaintiff's Motion to Compel, (Filing No. 142);
• Defendants' Objection to Notice of Depositions, (Filing No. 86); and
• Plaintiff's Motion to File Under Seal, (Filing No. 102).

Each of the motions are addressed below.

BACKGROUND

Plaintiff Cody Foster & Co., Inc. ("Cody Foster") is a Nebraska corporation with its principal place of business in Nebraska. A part of Cody Foster's business involves the sale of Christmas ornaments to retailers nationally. Defendant Urban Outfitters, Inc. ("Urban Outfitters") is a Pennsylvania corporation with its principal place of business in Pennsylvania. Defendant Anthropologie, Inc. ("Anthropologie") is a Pennsylvania corporation with its principal place of business in Pennsylvania and is a subsidiary of Urban Outfitters, Inc. Defendant URBN UK, Ltd. ("URBN") is a United Kingdom Corporation and is a subsidiary of Urban Outfitters.

In 2013, Cody Foster entered into numerous sales contracts with Defendants for the sale of ornaments purportedly created by Cody Foster. In turn, Defendants would sell the ornaments through its retail stores and via the internet. All orders placed by Defendants were governed by the Terms of Purchase Agreement (the "Purchase Agreement") with Urban Outfitters.

The Purchase Agreement required Cody Foster to comply with "all applicable copyright... unfair competition and all other intellectual property laws." (Filing No. 91-2 at CM/ECF p. 3) It also contained a provision allowing Urban Outfitters to "return... any merchandise and cancel this contract where a claim is made that the sale by [Cody Foster] infringes any alleged... design... or copyrights." (Filing No. 91-2 at CM/ECF p. 2).

In October of 2013, San Francisco based artist Lisa Congdon publically accused Cody Foster of stealing her artwork and reproducing it in the form of holiday ornaments. Congdon also apparently made it clear she desired retailers who purchased ornaments from Cody Foster to be aware of her accusations and that she was initiating legal action due to the alleged infringements. Congdon's public remarks led other independent artists, including Cassandra Smith, to come forward with claims of their own regarding Cody Foster's improper use of their work. Urban Outfitters received a specific complaint from Smith regarding the infringement of her work. (Filing No. 91-5). Shortly after these artists' complaints surfaced, several retailers severed ties with Cody Foster and returned its merchandise. Urban Outfitters received several complaints claiming the Cody Foster merchandise included copies of other artists' designs. (Filing No. 91-9)

Presumably as a result of the accusations of infringement against Cody Foster, Urban Outfitters sought assurances from Cody Foster that all of its works were based on original designs. Cody Foster provided Urban Outfitters with "product development sheets" for some of the ornaments ordered by Urban Outfitters. However, these sheets did nothing to allay Urban Outfitter's concerns. To the contrary, Urban ...


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