Arlington Hardware cashed in on stolen design, local artist says

ARLINGTON — In the back room of elSage, a design company based in Mount Vernon, Phoebe and Jonathan Carpenter Eells make T-shirts from scratch.

It all starts with carvings. Those are used to screen-print the shirts.

One of those carvings depicts a mountain, with three waves cresting in front and two trees to the left side. Underneath the design, an elSage original, it reads: “Pacific Northwest.”

The design, dubbed “Pacific Northwest” by Phoebe Carpenter Eells, its creator, is awfully similar to a design that appeared on a sweatshirt and blankets last year at Arlington Hardware, a popular Ace Hardware franchise 22 miles away.

Except it shows a grove of three trees, not two.

And under the landscape, the caption reads: “Arlington Hardware.”

elSage claims Arlington Hardware stole the popular design and profited off it.

Arlington Hardware contends elSage did not file a copyright on the work, but the store did pull the disputed design from its shelves — after Phoebe Carpenter Eells visited Arlington Hardware and asked the store to stop selling it.

Phoebe Carpenter Eells, who started the business, created the carving based on a design she drew in a sketchbook in 2016. elSage sold “thousands” of pieces of clothing with the logo on it, she said. They’ve since stopped.

Some lines on the mountain design line up on both prints. Those lines come from the carving process, Phoebe Carpenter Eells said, and could not have been replicated unless the design was scanned and copied.

“It’s like a fingerprint,” Phoebe Carpenter Eells said. “I can match that up and be 100% sure it was stolen.”

elSage’s owners believe Arlington Hardware has stolen artwork from other businesses, as well.

Arlington Hardware’s owners, Mike Jones and his son, Taylor, did not respond to numerous requests for comment. The Ace Hardware Corporation did not respond, either. Mike Jones is also a registered agent for Golden Goose Properties, LLC, which owns the property housing the store.

It has sent elSage on a dizzying quest to protect their work — in what the owners now see as a cautionary tale for other graphic artists at risk of being ripped off.

One big lesson?

Protect your work before it’s snatched up by a bigger fish, not after the fact.

“Document your process,” Phoebe Carpenter Eells said.

“The onus lies on the (creator) to enforce,” Jonathan Carpenter Eells said.

‘Outside designers’

Under a common law copyright, any artwork belongs to its creator by default. But common law copyrights have little teeth, Chicago attorney Kevin Keener said.

“If you publish it, you want to register the copyright within three months, to get the full benefit of the registration,” said Keener, who for 15 years has worked in intellectual property law, including copyrights, patents and trademarks. “You can register it years later, but you don’t get the benefits later on.”

Registration comes with the presumption of validity and a valid trademark. Federal courts often kick out copyright infringement claims without a registration, Keener said. Washington state courts accept cases without a registration, he said. It gets harder to prove validity as time goes on.

A company seeking damages retroactively, like elSage, is a common problem. It’s also difficult. And it can be expensive for the creator.

“The biggest thing I find is not doing it in time,” Keener said. “You can take some steps and fix it. You’re going to lose out on some damages.”

elSage has spent the past four months working to protect its designs with the U.S. Copyright Office — and in the court of public opinion.

In fall, elSage went to its 11,400 followers on Instagram with the story. Since then, the company has made several videos and blog posts updating followers on the saga.

Around the same time, Phoebe Carpenter Eells walked into the hardware store with her cousin. She eventually spoke with Angela and Taylor Jones. She pulled an elSage t-shirt out of her bag and showed it to Angela, who appeared uncomfortable, Phoebe Carpenter Eells said.

“There was no sense of remorse or accountability, just that she wanted to not be in this conversation,” Phoebe Carpenter Eells said.

Afterward, elSage sent a formal letter demanding the removal of the design, via attorney Lindy Laurence of Rational Unicorn Legal Services.

Arlington Hardware’s attorney responded in writing, saying the clothing was taken off the shelves and it would not be worth it to seek damages.

“Ms. Carpenter Eells’s design did not include a copyright notice, and our own research indicates that Ms. Carpenter Eells did not register her work with the United States Copyright Office when it was first published in 2017,” Arlington Hardware’s attorney Eric Fugett wrote on Nov. 6. “In fact, we found no copyright registrations in her name. Your letter also fails to mention a copyright registration.”

The response noted Arlington Hardware uses “outside designers” for its designs, and employees “are in no position to evaluate potential copyright issues with any resulting work.”

Arlington Hardware no longer had any reproductions of the “allegedly infringing design” in its store and “absolutely no intention” of making any future use of it.

Fugett goes on to write that his client considers the issue closed.

“If Ms. Carpenter Eells cannot accept this outcome for the amicable resolution that it is and continues to defame or harass Arlington Hardware, or attempts to entangle it in unnecessary and time-consuming litigation,” the letter reads, “she may rest assured that our client will pursue any and all causes of action it might have against her, including but not limited to claims for defamation and tortious interference.”

‘The originality of art’

Arlington Hardware has been a mainstay community business since 1903.

Recently elected Mayor Don Vanney Jr. said the business brings in tourists, including some by bus, to 215 N. Olympic Ave. It’s always busy and has a large selection of fashionable clothing, in addition to its offerings as a hardware store.

Phoebe Carpenter Eells created elSage late in 2009, running the business out of her house. The brick-and-mortar store opened in 2016 on South First Street in Mount Vernon. Phoebe and Jonathan are first-timers to the world of copyright law. But Phoebe Carpenter Eells has evidence she created the design first. She takes photos of much of her work while she’s creating art. She also often dates the designs in her sketchbooks.

That has become important.

“I take a lot of pictures and I can go back and tell you exactly what date this was created on,” Phoebe Carpenter Eells said.

Phoebe Carpenter Eells shared social media messages of some people who thought elSage was collaborating with the hardware store. But elSage had no such intention. The two businesses have disparate political ideologies.

“I’m surprised that you want to be affiliated with us or thought to be affiliated with us, given our political differences,” Phoebe Carpenter Eells recalled saying, on her visit to the store in September.

After that comment, Phoebe Carpenter Eells was kicked out. The hardware store’s attorney confirmed in the formal letter: “It was at that point that the exchange became unpleasant, and our client asked Ms. Carpenter Eells to leave the store.”

Phoebe Carpenter Eells has a reputation as a progressive business owner: a rainbow display in the storefront window; buttons of “he/they” or “they/them” pronouns for sale; as well as shirts saying “Good Feminist / Bad Bitch.” People have broken out their windows, in what she believes was political vandalism.

“We would rather be able to be honest and share views that are supportive and uplifting to others and go out of business that way, than to compromise our values in order to make it,” Jonathan Carpenter Eells said.

Arlington Hardware has advertised shirts that read: “Patriotism Is Not A Crime,” “Don’t Tread On Me”, “Come and Take it” (with a graphic of a military-style rifle), “If This Flag Offends You I’ll Help You Pack.”

elSage did not want to be associated with that.

“It’s important to me that the community knows that we’re not working together and that this was not sanctioned,” Phoebe Carpenter Eells said. “I wouldn’t want to work with them even if they tried to hire me.”

Arlington Hardware gave Phoebe Carpenter Eells contact info for the designer who the hardware store commissioned for the merchandise.

Aaron Meurer, with the Indiana-based Meurer Graphics, did not respond to an inquiry from The Daily Herald. But he acknowledged to elSage that he had “used art based on your original design.” In an email, Meurer told elSage the design hadn’t been used outside of the hardware store. He apologized.

“I am a freelance designer,” he wrote, “and I too value the originality of art and would not be happy if mine was copied.”

‘Bullies are not cool’

It’s striking to compare how Arlington Hardware’s social media presence has changed over the past decade.

In 2014, its advertisements on Facebook showed lumber and window planters.

Now, it’s almost exclusively Western- and political-themed apparel. Designs borrow freely from Patagonia, Coors, Rainier, Harley-Davidson, Marlboro and others. Phoebe Carpenter Eells said she got messages back from some of those companies, including Coors, when she questioned whether Arlington Hardware had the rights to their logos.

Coors, for example, said “they appreciated the infringement being brought to their attention,” Phoebe Carpenter Eells said.

Coors and Harley-Davidson did not immediately respond to a request for comment from The Herald.

Justine Calles, an artist who did work for Snohomish Hay and Cattle, believes her design of a longhorn skull was used without permission — or at least nearly copied. When she reached out to Arlington Hardware, the company didn’t respond, except to block her on Instagram.

Arlington Hardware also has a popular shirt in the style of AC/DC’s iconic thunderbolt logo and font. They have also used lyrics, including a popular shirt that reads, “Barbecue stain on my white T-shirt,” which is from the Tim McGraw song, “Something Like That.”

In its Facebook advertisement for the shirt, it quoted six lines from the song.

It was not clear if Arlington Hardware sought permission for any of those products.

Section 107 of the Copyright Act defines “fair use” — a concept some attorneys build an entire legal career around. In short, it’s a question of whether someone is using the creation for commercial or nonprofit reasons; how much of the copyrighted work is being used; and any economic impacts.

Some companies have used “parody law” as a defense against using copyrighted media in products, because U.S. case law generally allows people to create satire — as an exercise of free speech. See, for example, the U.S. Supreme Court case Hustler v. Falwell in 1988, where justices allowed speech that “could not reasonably have been interpreted as stating actual facts” about a public figure.

However, in 2023, the same high court ruled in Jack Daniel’s Properties, Inc. v. VIP Products LLC that a dog-toy company could not have a product that closely resembled the whiskey company’s iconic branding. The wording on the dog toy was different, similar to Arlington Hardware’s nods to popular brands in their products.

“The Supreme Court said, ‘No, the parody defense does not apply in this case because you were keen on commercializing the item,’” said Keener, the attorney.

elSage asked for monetary damages in its initial letter, according to Arlington Hardware’s response. elSage’s owners did not share their initial letter with The Daily Herald.

In a text message, Phoebe Carpenter Eells said Arlington Hardware’s claims of defamation are “baseless” and said that continuing with litigation to secure any sort of damages would be “expensive and lengthy.”

“Bullies are not cool. It’s not cool to walk through the world like a bully,” she added. “I don’t like being bullied.”

Correction: A previous version of this story omitted part of Phoebe and Jonathan’s last name — it is Carpenter Eells.

Jordan Hansen: 425-339-3046; jordan.hansen@heraldnet.com; Twitter: @jordyhansen.