Last Friday, Bri Luna woke up to a barrage of messages on her phone. Luna is the creator of The Hoodwitch, a Seattle-based online retail store and community that, since its founding in 2013, has been a prominent hub for contemporary witchcraft. In addition to selling tarot cards, tapestries, crystals, and bundles of sage and lilac, Luna, who runs the site with her business partner and one employee, offers workshops and tutorials about witchcraft.
“This is my culture,” Luna says. “My whole brand was inspired by my grandmothers. Both of them were healers and witches. One of my grandmas came from New Orleans and the other one came from Mexico. Witchcraft is not just a trend in my life, and it sucks to see this thing I’ve worked so hard to create get stolen for a fucking Starbucks ad.”
As Luna learned from the barrage of DMs, PMs, tweets, and comments left on her social media accounts starting last Friday, Starbucks had just launched a new product: the Crystal Ball Frappuccino, which the company describes as a “mystical, swirling peach infusion topped with peach flavored whipped cream, turquoise sprinkles and one of three different candy gems that reveal your fortune.” The images used in the advertising campaign and distributed on social media looked awfully familiar to Luna and her fans. Many of Luna’s Instagram posts feature her hands—with colorful, intricate, talon-like nails and knuckles tattooed with witchy iconography—cradling tarot cards and crystals like shining black tourmaline, purple amethyst, and ice-clear quartz. The Crystal Ball Frappuccino ad campaign features a sharp nailed-hand holding a frosty Starbucks cup over a swirling, trippy background. “My images represent my culture,” Luna says. “I’m black and Mexican. I love having acrylic nails and showing the colorful candles from the botánica. I don’t know anyone who did that before I did.”
Gaze deeply into @Starbucks new #CrystalBallFrappuccino https://t.co/etMZ2iSg5I pic.twitter.com/LUZ5eoqUBw
— Starbucks News (@Starbucksnews) March 22, 2018
To the casual observer, the similarities between the Starbucks ad campaign and The Hoodwitch may seem coincidental, but at a time when paganism, astrology, witchcraft, tarot, and all around woo have found remarkable popularity in mainstream culture—you can now purchase crystals at new age havens like Walmart—The Hoodwitch, with almost a quarter-million instagram followers, is a leader. She’s been featured in Vogue, VICE, Essence, BuzzFeed, the New York Times, and all over the internet. And while Luna doesn’t have proof that Starbucks stole her look, she’s well-known in Seattle, where the Starbucks headquarters is less than 2 miles from where she works in Pioneer Square.
“I was just on the cover of City Arts in February,” Luna says. “They had me holding my giant crystal ball. City Arts is everywhere. It’s not far-fetched for anyone who works in design or marketing at Starbucks to see that cover. If this was during Halloween, I wouldn’t have said anything, but it’s fucking March.”
This isn’t the first time Starbucks has been accused of ripping off artists and small business owners. Last year, a New York coffee shop sued Starbucks for $10 million, alleging that the company’s famed (and much maligned) Unicorn Frappuccino infringed on their trademarked product, the Unicorn Latte. They settled for an undisclosed sum.
Before that, in 2015, Starbucks was sued by Brooklyn-based street artist Maya Hayuk, who alleged copyright infringement in the ad campaign for Mini Frappuccinos. Hayuk, who is known for her bold, geometric murals, had reportedly been in talks with the company about working on the campaign, but, after she declined their offer, Hayuk later discovered that they’d used artwork strikingly similar to hers anyway, this time created by an in-house Starbucks’ artist. A judge, however, ultimately dismissed her case, stating that copyright law does not apply to concepts or ideas.
Should Luna decide to take legal action against Starbucks, the same issue is likely to come up, says Zahr Said, a professor of intellectual property and copyright law and the University of Washington School of Law. While most creative works are copyright-protected as soon as they are made, you can’t copyright ideas. So while The Hoodwitch’s photos are copyrighted, not everything in those photos is protected as well, and an attorney could argue that a long-nailed hand holding a crystal ball (or a Starbucks cup) isn’t a copyrighted work of art; it’s a concept.
Katherine de Vos Devine, an art historian and self-identified witch with a JD from Duke Law, discussed the potential roadblocks to legal action in a blog post called “Bitter Brew: Why The Hoodwitch Should Hex Starbucks.” While Luna may, she writes, have a claim, there’s no guarantee that a court would decide in her favor. But even if what Starbucks did was legal, that doesn’t make it ethical. “Starbucks most likely paid someone to source and create imagery for the ad,” Devine writes. “If they liked Luna’s work so much, they should have asked her to direct the project, take the photographs, or style the ad. At minimum, Starbucks should have credited Luna as the inspiration for the Instagram spot. And it’s all the much worse because Luna actually lives in Seattle and has a robust online presence. She isn’t hard to find.”
Starbucks, for their part, denies any infringement. “We are aware of the claims and believe they are without merit,” a company spokesperson said. “The marbled turquoise and white Starbucks Crystal Ball Frappuccino blended beverage is meant to resemble a crystal ball and the colored candy gems reveal the customer’s fortune of either luck, adventure, or magic.”
Luna isn’t buying it. “I really just wish someone from Starbucks had emailed me,” she says. “I don’t know if it’s even realistic to sue them. I’m a single mom. I don’t have thousands of dollars to take on a global corporation. But it sucks that these people can literally pick and choose what they want to take from someone’s work, use it for their campaign for a week, and then throw it out.”
She won’t have to wait long for the ad campaign to disappear: Starbucks’ Crystal Ball Frappuccino ends its brief appearance in stores this week.
