Zazzle Sued Because Twilight Fans Like Making Their Own Merchandise

from the safe-harbors-anyone? dept

Fri, Oct 30th 2009 10:45am — Mike Masnick

It looks like "print-on-demand/create your own t-shirt/mug/mouse pad store" company Zazzle has been sued for infringement by Summit Entertainment, who owns the licensing rights to the oh-so-popular Twilight movies. Apparently, all those excited tweens have been making their own Twilight merchandise. Now, basic common sense would tell you that Zazzle is the tool provider, and not the actual infringer here. But, Summit is claiming trademark violations, and (tragically and inexplicably) the official safe harbors cover things like copyright and defamation, but not trademark (hurray for legal loopholes). The only ones doing the actual infringement are the users, not Zazzle itself, but Zazzle has to hope that a court actually realizes this, and sometimes the courts get very, very confused on these sorts of things.

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Filed Under: liability, third party, twilight
Companies: zazzle

33 Comments

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Rose M. Welch (profile), 30 Oct 2009 @ 10:17am

But...
...Zazzle didn't just provide a program. They actually print and sell these items. If printing and selling these items would be illegal without the pre-orders, then how do these pre-orders change that?
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- Ryan, 30 Oct 2009 @ 10:57am
  
  Re: But...
  Zazzle isn't selling Twilight items, they're selling users the ability to create their own merchandise - Twilight doesn't actually have anything to do with Zazzle's business model. And like Jesse, I can't fathom how users are infringing on the trademark here, either. They're just writing "Twilight" on a t-shirt or something, they're selling them; if that was infringement, then we have a whole boatload of free speech issues here.
  
  It appears rather clear to me that there is no legitimate trademark claim here...
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  - Ryan, 30 Oct 2009 @ 10:58am
    
    Re: Re: But...
    Correction: ...They're just writing "Twilight" on a t-shirt or something, they're not selling them; if that was infringement...
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- Robert Ring (profile), 30 Oct 2009 @ 10:57am
  
  Re: But...
  Because they did not design the shirts. This would be like suing HP because someone used one of their printers to print a copyrighted work. Zazzle isn't making money off of selling designs; they're making money off of giving others the possibility to make any kind of T-shirt they want.
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  - paintball gear, 23 Feb 2012 @ 11:26am
    
    Re: Re: But...
    But if HP added your printed design to a store where anyone can then come buy it, they'd have to be really careful that these listings dont include infringing products. This is what zazzle is doing.
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- ChurchHatesTucker (profile), 30 Oct 2009 @ 12:36pm
  
  Re: But...
  "...Zazzle didn't just provide a program. They actually print and sell these items."
  
  Yeah, and if I owned a shop I'd sell you a t-shirt with "Rose M. Welch" printed on it. If "Rose M. Welch" turns out to be copyrighted by some company or other, it should be on your ass. Not mine.
  
  Welcome to the ownership society. Have you staked your claim yet?
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Jesse, 30 Oct 2009 @ 10:52am

So you if you can make a website/sign that says xyz trademark sucks, why can't you make a mug that says: "I love twilight"
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- Jon Bane, 30 Oct 2009 @ 11:11am
  
  Re:
  >why can't you make a mug that says: "I love twilight"
  
  Where is the money in that?
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Carl (profile), 30 Oct 2009 @ 11:53am

Cafepress part of this?
Thats funny--I have never seen Twilight but I figured they "got it" since they openly allow (and even encourage) users in Zazzle's competitor, Cafepress, to make Twilight-themed T-shirts. I wonder if Cafepress is involved somehow.
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Derek Kerton (profile), 30 Oct 2009 @ 12:02pm

In Other News
I make a collage of Harry Potter images, glued to a piece of cardstock paper using Elmer's Glue. Elmer sued by JK Rowlings.

My daughter buys art supplies from the retailer Michael's, and makes her own Wonder Woman Halloween costume. Michael's sued by Silver Pictures.

A guy stores shared Metallica music on an HP hard drive, plays it on his HP computer, burns a new CD copy in his HP burner, prints a CD page on his HP printer. HP sued by Metallica.

A policeman arrives at the scene of a reported bank robbery. A masked man takes a bag of money from the teller. Turns out it's not a robber, just a guy making a withdrawal. So the policeman shoots the bank manager.

All equally logical. As in, not very.
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- John Duncan Yoyo (profile), 30 Oct 2009 @ 12:31pm
  
  Re: In Other News
  >My daughter buys art supplies from the retailer Michael's,
  >and makes her own Wonder Woman Halloween costume. Michael's
  >sued by Silver Pictures.
  
  I think Warner Brothers/DC Comics would be the ones with standing. They don't go after costumers at cons so I think she is safe.
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  - Derek Kerton (profile), 30 Oct 2009 @ 12:54pm
    
    Re: Re: In Other News
    I actually dug into this for that quick post, and found that a random guy, William Moulton Marston created Wonder Woman, and the estate may still own the rights. I figured it would be funnier and punchier if I just mentioned the studio working on the movie.
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- RogueDeals.com, 30 Oct 2009 @ 12:47pm
  
  Re: In Other News
  Brillant.
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- Anonymous Coward, 31 Oct 2009 @ 8:07am
  
  Re: In Other News
  Those things aren't equal at all. Those involve purchasing materials and doing it yourself. This is placing an order for them to do it. So... They are doing it. If Zazzle sent out a printer, ink, and a T-shirt, then it would be equitable.
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  - Derek Kerton (profile), 4 Nov 2009 @ 5:45pm
    
    Re: Re: In Other News
    So you think some human at Zazzle lovingly accepts the job order, does a full check to make sure no content is copyright, checking all sources of copyright images, animations, words, etc, runs it past the lawyers for sign-off, hand-holds it personally through the production process, and ships it off?
    
    Or do you suppose it's machine-produced with maybe 20 seconds of a minumum-wage associate feeding the blank shirt into the machine?
    
    Zazzle doesn't design the t-shirt, and aren't responsible for the design. Zazzle itself is just a tool, as is an HP printer
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    - paintball gear, 23 Feb 2012 @ 11:30am
      
      Re: Re: Re: In Other News
      Derek, zazzle allows you to list your product you created on their public ecommerce site, and sell it to others. So, they could potentially be selling thousands of copies of of images taken directly from a movie cover or similar direct source. I agree that printing one item for yourself is one thing, but posting a product online for everyone to purchase does require they be more careful.
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    - Mike, 26 Dec 2017 @ 10:19am
      
      Re: Re: Re: In Other News
      Zazzle is responsible. It’s called contributory trademark infringement.
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Anonymous Coward, 30 Oct 2009 @ 12:24pm

Derek Kerton, I like where you are headed.
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AlwaysBreaking (profile), 30 Oct 2009 @ 12:51pm

Suing over free advertising?
Silly lawyers, suing because Zazzle has enabled fans to provide free advertising and marketing. Why are entertainment companies so hell bent on pissing off fans?
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Carl (profile), 30 Oct 2009 @ 12:56pm

re: Suing over free advertising?
I'm telling ya--go to Cafepress.com and you'll see that user-generated Twilight shirts are a large part of their current business model. I'll bet that this is a large part of this because whether or not it is genuine copyright infringement, that is probably the most threatened aspect of the shirts appearing on Zazzle.
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Freedom, 30 Oct 2009 @ 1:05pm

Licensing...
It was my understanding that Zazzle gives you a small cut of every sale of any item that you create that someone else buys. So, if you create a mug of XYZ and someone else wants the same mug you get your 10 cents sort of thing.

Interestingly, I believe some people actually make a lot of money doing this - to the tune of 100k if my source is right.

I think this is probably where the grey line is. You can create it for your own use is fine ??? but you start making money off it and it involves trademark type material, then the line isn't so clear.

Freedom
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- Ryan, 30 Oct 2009 @ 2:10pm
  
  Re: Licensing...
  That...makes it very interesting. Zazzle just provided the tool to sell user-created content and didn't have any creative discretion, so they aren't liable for trademark infringement. The users don't actually sell any of the items they designed, so they can't be liable.
  
  It seems to me that there still shouldn't be any trademark infringement because buyers should recognize if they're on the site that these are not official Twilight merchandise, which eliminates the need for trademark protection. However, perhaps some feature such as the "official" seal on twitter to indicate legitimate items would end any doubt--I suppose I could accept a law that required something of the sort in exceptions like this.
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Benjie, 30 Oct 2009 @ 1:05pm

So much money to be made here
I'm going to create one of those "alphabet" banners for kindergarden then sue anyone using those letters
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deadzone (profile), 30 Oct 2009 @ 1:39pm

Disturbing
I find the whole "Twilight" phenomena very disturbing. I mean seriously, Vampires that aren't killed by sunlight that glitter? Really?

Can we all agree to be outraged about the movie at least. Vampires should only come out at night, be bad-ass-motherfuckers, and most certainly NEVER, EVER, EVER-EVER-EVER, freaking glitter.
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ShadeovBlack, 30 Oct 2009 @ 2:21pm

HEAR HEAR!!
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Anonymous Coward, 30 Oct 2009 @ 2:33pm

Silly lawyers, suing because Zazzle has enabled fans to provide free advertising and marketing.

Fuck your "free advertising and marketing". I thought artists were supposed to become expert merchandisers? Now you think they should allow the merchandise to be pirated too?

Oh Techdirt...

lol
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- Anonymous Coward, 30 Oct 2009 @ 3:13pm
  
  Re:
  Hint: There will always be a market for official merchandise over random images shoved onto t-shirts by fans.
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  - Anonymous Coward, 30 Oct 2009 @ 3:36pm
    
    Re: Re:
    Hint: There will always be a market for official merchandise over random images shoved onto t-shirts by fans.
    
    Not if anyone can replicate the "official" merchandise without fear of the law.
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    - Lisa (profile), 1 Nov 2009 @ 10:20am
      
      Re: Re: Re:
      You've never heard of collector's items? Official merchandise will always have more value than a unofficial reproduction.
      
      This is especially true in the fashion industry. You'll find plenty of people who prefer the more expensive originals than the off brand knock-offs.(even when the materials are of the same quality)
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skatersollie, 23 Jan 2010 @ 7:22pm

I don't think it's that simple
I am a fellow zazzler. In part it has to do with how the money changes hands and how the service is provided. I read in a previous comment that HP is a printer and shouldn't be sued, but they are not servicing what is being protected. T-shirts sounds a little trivial, but as a hypthetical let's use counterfeiting real money. Let's say printer company A has the "tools" to counterfeit money. User A doesn't have any tools so he goes to company A and asked for a counterfeit in exchange for an exchange rate. Now who does the Government go after? Probably both, but they'd want to go after the guys who actually have the equipment more than the end user. If anyone or company can say "i didn't know" as an excuse I think 99% of the population would set up shop. T-shirts seem trivial, but behind the tshirts is real dollars
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clig73, 15 Jun 2010 @ 6:31pm

I think almost everyone is missing the point here
It's not about a legal claim on a word or words. What we're talking about here is intellectual property copyright. Just because the typography is different than what you see on the book covers, these shirts that say "Twilight" are very clearly meant to be THAT "Twilight", and not just the phenomenon whereby day turns to night.

For fans to make their own home-made products as a sign of appreciation is one thing (no money changes hands, then no-harm-no-foul). The problem here is that by SELLING the merchandise without being licensed, the owner of said copyright doesn't receive their due royalties. Now, if Stephanie Meyers didn't care about that, there's such a thing as Creative Commons Licensing, which can give permission for non-commercial usage of copyrighted/trademarked stuff for the fans, or even full commercial rights, if the legal owner so chooses. Since Twilight is in fact NOT licensed under Creative Commons, Ms. Meyer demonstrates that she DOES care, and would rather get paid royalties if anyone is making money off her creations (title, characters and concepts alike).

Here is where Zazzle's culpability comes in: they are not selling these items on behalf of their users out of the goodness of their own heart for no profit-- they do in fact make money off this. Furthermore, because they're not just selling the items but actually MAKING them, they are 100% complicit in the bootlegging process.

Take skatersollie's analogy:
Scenario 1) you hire "Company A" to print counterfeit currency for you on their equipment, you're both in the hot seat.
Scenario 2) You BUY a printing press from "Company A", then use it to make counterfeit currency, that's all on you-- they just sold you the equipment, they were not directly involved in the crime.

Zazzle is CLEARLY in scenario 2 here. They can try and claim no fault for their users' violation of copyright, but since they're the ones actually MANUFACTURING this stuff, they should really know better. They're clearly turning a blind eye to the infringement for profit.
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chromo, 17 Aug 2010 @ 10:04am

Good article.
Good article. Personally, i believe that in order to succeed you should give equal attention to making HIGH QUALITY design, and promoting your store. If your products are good - you'll succeed in the long run, but to speed up this succession - you should put half of your time in promoting the store.
Here's my gallery. promoting, remember? (:
http://www.zazzle.com/chromobotia*
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paintball gear, 23 Feb 2012 @ 11:24am

gonna disagree this time
I think zaz actually is liable this time because I could-

-upload a picture of the movie poster
-buy a shirt with this on it (bad, but not terrible)
-list it for sale for others to buy (now we're pretty much infringing).

At step 3, zazzle is selling merchandise to the public with unlicensed works on them. This is where they have to be careful what they allow to be sold.

On the other hand, zazzle also has an easy mechanism to report these items as trademark infringement, and they'll take them off the site quickly. I know, I've had stuff removed for this, even for a frivilous reason.
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