Q&A: Nude-Photo Artist Accuses Zappos of Ripping Her Off

'It's not cool,' says Erica Simone

• Note: One of the images below features nudity. NSFW.

When Zappos unveiled its "More Than Shoes" campaign earlier this summer, featuring naked women on the streets of New York, it certainly turned heads—none more so than Erica Simone, a photographer who had taken some remarkably similar photos as part of her "Nue York" project. (Site is NSFW.) She believes the marketer and its agency, Mullen, ripped her off—that the shots are simply too similar and almost certainly not a coincidence.

     Mullen denies this, telling AdFreak: "The 'More Than Shoes' campaign we did for Zappos is an original idea. It was not influenced by anyone else's content." The agency further points out that Zappos did an online video in 2007 with a naked couple walking down a street. Plus, the current campaign has included online executions with naked men, not just women.

     Earlier this week, AdFreak spoke by telephone with Simone, who is currently vacationing in France and weighing her legal options.

UPDATE: Scroll to the bottom to read a lengthy response from Mark Wenneker, chief creative officer at Mullen.

What did you think when you first saw the Zappos ads?

I had a friend who posted on my Facebook wall: "It looks like Zappos ripped you off." And the first picture that popped up was the one with the girl jogging. And it was almost identical to my shot. I was like, "Oh shit." And then I looked at a couple of others. There's a couple of other similar ones. They haven't come out with the full campaign yet, so I haven't seen the full set of them. But the first two that I saw were very similar. I mean, the jogging one is blatant.

There's the moped one, too.

Yeah, there's the moped one. I mean, there's enough differences, but it's a rip-off, for sure. It's just the whole concept. I'm obviously not the only person who does nudity in the street. But it's just the fact that the whole style is so similar.

So, you feel like the composition of the photos is too similar to be a coincidence.

The composition and the whole concept.

What did you do? Did you contact Zappos?

I haven't contacted them yet. I'm still waiting to hear from different lawyers on what they plan on doing.

And what are you being told so far by the lawyers?

They're saying different things, but it seems that there's an obvious infringement. I'm not sure how it plays out in the courts. This is something I'm obviously not familiar with at all.

What kind of action would you like to see from Zappos that would stop you from filing a lawsuit?

I guess ideally it would be great if they altered the campaign. I can't ask them to pull it completely. I can't ask them not to be inspired by a certain concept or idea. But it would be great if they changed it a little bit, so that people aren't calling me and going, "Oh hey, I saw you shot the Zappos ads!"

You're getting calls like that?

Yeah, people are completely confusing my work with the ads, and it's totally bringing my collection down a level, which is not cool.

What do you mean by that—bringing it down a level?

I've spent the last two years putting this collection together. It's taken me a lot of time. It's hard work, and I've been through a lot with it. And just to see this big company come in and steal the whole thing and capitalize on it—especially for clothing, when my whole collection is about being yourself and not having clothing as an image to speak for yourself—it's just frustrating.

The agency says it's pure coincidence. That theirs was an original idea. Do you think that's possible?

A pure coincidence? That's what they said? Yeah, that's very funny. Of course they'd say that. What are they going to say? No, our creative director isn't so creative? To me, it's pretty blatant. But hey, miracles happen, you know?

We see this kind of thing occasionally. How big of a problem is it for artists these days?

It's a big issue. You know, it sucks. Artists barely make money doing what they do. They put their ideas out there, and then it's easy for others to capitalize on it. But you know, it happens. This is what happens in life. I'm not going to cry about it. But it would have been cool if they had called me to shoot this campaign.

Would you have done that?

I definitely would have thought about it, for sure. It would have to be my own style, but yeah.

So, you're not opposed to doing commercial stuff.

I'm not opposed to being hired for work, no.

Do you think the similarities here will actually bring more publicity to your work—that there's any value in that idea?

Yeah, if it gets out there, then of course there'll be publicity. And hopefully it will distinguish in people's minds who did what ad, and who did what art.

Is there anything artists can do to protect themselves from this kind of thing?

Registering images is always a good thing to do. Not just copywriting them. So, that's one thing you can do. I mean, at the same time, it's flattering, you know? We put our work out there, and the world catches on to it. And I think that's an awesome thing. I'm all about it. But it could have been done in a better way. Feeling ripped off sucks. But it's good to inspire people. 

• Response from Mark Wenneker, chief creative officer at Mullen:

     "I read your story about Zappos and wanted to let you know how we came up with this recent campaign. When we started concepting back in January, the whole point was to say that Zappos sells 'more than shoes' and to do it in a way that would quickly get people's attention in magazines and online.

     Our concept was 100 percent original. This to say it was inspired from within, not from without.

     To prove that Zappos sells 'more than shoes,' the concept was simple. Show people wearing only shoes. Thus, leaving them wanting more than shoes.

     Zappos is willing to take risks, so they bought the idea of using semi-naked models in the ads. We all agreed that the models should look like real people in real scenarios. Our campaign was launching in the summer, so flagging a cab, going for a jog, riding a bike, going to a BBQ and playing frisbee in a park were natural scenarios to show. We mixed it up between short, tall, black, white, female and male models. One of our male models is an ordinary looking guy who shows-up semi-naked in a Yahoo home-page takeover and winds-up getting dressed by Zappos.

     We wanted a photographer who could make the scenes look totally authentic, so we hired someone who had a shooting style that feels like captured real life moments. We didn't want to get too fashionable or serious.

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