Why Intermediary Liability Protections Matter: Our 'Copying Is Not Theft' T-Shirt May Be Collateral Damage To A Bad Court Ruling

from the where-you-place-the-liability-matters dept

Last week, as you may recall, we wrote about a bizarre situation in which print-on-demand t-shirt maker, Teespring (who we had happily used for most of our t-shirts for years), had taken down our "Copying Is Not Theft" t-shirt, first claiming that it was infringing on someone else's work (it was not). When we escalated the issue (as per their instructions), we were suddenly told it had nothing to do with infringement (despite the initial email) but because it violated their Acceptable Use Policies -- which, again, I assure you, we did not.

We had thought that, perhaps, it was a bizarre overreaction to an ongoing saga of people trying to shine a light on automated bots taking popular "this ought to be on a t-shirt" tweets and turning them into possibly infringing t-shirts. However, there's perhaps an even larger reason why various print-on-demand t-shirt companies may be a bit extra twitchy with their takedown trigger fingers lately: because of some bad court rulings that effectively removed the DMCA's safe harbor from some of these companies. Back in the summer of 2017, we wrote about a court ruling against Zazzle, one of the oldest print-on-demand operations out there. That ruling more or less said that because Zazzle prints on physical goods, that gives it the "right and ability to control the sale of products" it creates, and thus, the safe harbors no longer apply.

This is nonsensical, as it's basically saying that even though the process (user generated content) is exactly the same, the fact that it goes from a computer screen onto an actual physical good like a t-shirt, that suddenly changes the liability protection for intermediaries. That jury went on to find Zazzle owed almost $500k in awards for infringement. However, some of those awards were over $30,000, and that's the cap for non-willful infringement. The judge claimed that the infringement by Zazzle was not willful and reduced the amounts of those awards.

That ruling was appealed to the 9th Circuit which, just last month, said that the court should revisit the willfulness bit, as Zazzle's failure to stop infringement could be seen as willful. In a very short (4 pages) per curiam (i.e., no judge put their name to the opinion, but it's effectively the joint opinion of the three judges) non-published opinion. It's technically not precedential for the 9th Circuit, but it's still not good:

Recklessness can constitute willful infringement, and can be established by an infringer’s knowing reliance on obviously insufficient oversight mechanisms.... Zazzle never deviated from, or improved, its oversight system throughout the two-year period at issue, despite repeated notice of that policy’s ineffectiveness. Zazzle “knew it needed to take special care with respect to [Young’s] images,” Friedman, 833 F.3d at 1187, but never gave its content-management team a catalogue of those images provided by Young. Even after Young provided the catalogue, Zazzle continued to sell products bearing each of the works for which the jury found willful infringement. Zazzle also relied on a user-certification process it knew produced false certifications and took no action to remove a user who had marketed more than 2,000 infringing products. A reasonable jury could find willfulness on this evidence and we therefore remand for entry of judgment consistent with the jury verdict.

Basically, because Zazzle didn't magically stop all infringement (an impossible task) from its users, it can be seen as willful. As Eric Goldman points out, this kind of ruling could mean the end of all print on demand, unless Congress steps in and fixes the law.

Every subsequent printing of a user-uploaded Greg Young image trigger a statutory damages award far in excess of Zazzle’s associated revenue, so the copyright owner basically can treat Zazzle as its personal ATM, which won’t be good for Zazzle’s profit. Plus, the court’s reasoning isn’t limited to this particular copyright owner, so Zazzle will be the ATM of every other copyright owner–millions of them. How long can a business like that last?

Given all that, is it really any wonder why Teespring and probably others as well may now have a really itchy trigger finger in trying to take down anything that even has a whiff of possibly being infringing?

This is why intermediary liability protection laws matter so much. This is why we're always talking about Section 230 of the CDA and Section 512 of the DMCA. This is why we're worried about what's going to happen in the EU under the new Copyright Directive. When you put more liability on companies who host user-generated content, it becomes increasingly less worth it for them to go through the hassle. And the incentives are for them to just start taking stuff down. All the time. And the incentive is for them to not much care even if you prove that the work is not infringing. Why take that chance when, as Professor Goldman notes, a single mistake allows a copyright holder to treat them like an overflowing ATM?

For now, you can still buy our "Copying Is Not Theft" merch over at our new test store on Threadless, but we're also left wondering if any of these companies can possibly survive if the courts keep ruling this way and Congress does nothing to fix it.

Filed Under: cda 230, copying is not theft, dmca 512, intermediary liability, on demand printing, t-shirts, willful infringement
Companies: zazzle

Court Realizes It Totally Screwed Up An Injunction Against Zazzle For Copyright Infringement

from the oops dept

Last year we wrote about a bizarre and troubling DMCA case involving the print-on-demand company Zazzle, in which the judge in the district court bizarrely and wrongly claimed that Zazzle lost its DMCA safe harbors because the allegedly infringing works were printed on a t-shirt, rather than remaining digitally (even though it was the end user using the infringing work, and Zazzle's system just processed it automatically). To add insult to injury, in November, the judge then issued a permanent injunction against Zazzle for this infringement.

However, it appears that no one is more troubled about this permanent injunction issued by Judge Stephen Wilson... than Judge Stephen Wilson.

In early February, Wilson released a new order reversing his earlier order and chastising himself for getting things wrong.

The Court finds that there is a “manifest showing” of the Court’s “failure to consider material facts presented to the Court” because the Court did not provide any justification for the permanent injunction.

Yes, that's the judge chastising himself for not providing the necessary justification for an injunction after finding Zazzle to not have safe harbors (some of the background here involves a question about which rules -- federal or local -- the court should be using to reconsider the earlier ruling, which isn't that interesting). Unfortunately, Wilson doesn't go back and revisit the DMCA safe harbors question -- this new ruling just focuses on why he was wrong to issue a permanent injunction after finding that the DMCA safe harbors didn't apply.

For that, the court notes (correctly, this time!) that under the Supreme Court's important MercExchange standard, courts should be careful about issuing injunctions for infringement, and that the plaintiffs need to show irreparable harm and that other remedies aren't more appropriate (and that an injunction won't cause greater harm to the public). Here, the plaintiff failed to do all of those -- and somehow the court missed it.

In addition, the court does note that it never even considered the question about whether the artwork that is displayed on Zazzle's website, but not printed on t-shirts, still gives Zazzle safe harbor protections -- and the injunction would have applied to those works too, even though they might have been protected under the DMCA:

Plaintiff’s proposed permanent injunction was ambiguous and went beyond the issues at trial, facts which the Court did not consider when it granted the initial motion for a permanent injunction. Before trial, the Court never decided whether Zazzle had a viable DMCA defense as to images only displayed on Zazzle’s website and never physically manufactured. Dkt. 81. Plaintiff withdrew its claims as to such “display-only” artworks prior to trial, so the issue was not tried. Dkt. 110 at 2:11-25. As such, it is unclear whether the injunction applies to both the manufacture and distribution of physical goods, or also to display of images on the Zazzle website. It is also unclear if Zazzle must take “reasonable” steps to address the display of images on its website as well as its manufacture of products. The Court did not consider these material facts in determining the scope of the permanent injunction; upon reviewing these facts, the proposed injunctions go beyond the issues at trial.

It's good that the court has realized its own mistakes and fixed them -- though it would be nice if it went further to the point of recognizing the problems of saying that by printing an image on a physical good the DMCA protections disappear.

But, really, reading this new ruling, you almost (almost) feel bad for Judge Wilson as he complains about Judge Wilson's failings in this case:

The Court recognizes that it failed to consider material facts in granting the permanent injunction in October 2017. The Court also recognizes that it provided no rationale for the permanent injunction, manifestly showing the failure to consider such facts. Upon considering those facts, the Court finds no basis for a permanent injunction in this matter.

Don't be too hard on yourself, Judge. Admitting your mistakes is the first step.

Filed Under: copyright, dmca, injunction, mea culpa
Companies: zazzle

Court Says DMCA Safe Harbors Disappear Once Infringing Images Are Printed On Physical Items

from the little-known-512(f)-clause-about-'word-became-flesh' dept

A really weird decision with some implications for DMCA safe harbors has come out of a US district court in California. The case revolves around paintings and pictures licensed by Greg Young Publishing International [GYPI], several of which appeared on Zazzle's website and, consequently, were turned into physical reproductions (mugs, t-shirts, etc.) via Zazzle's automated print-on-demand process.

After some discussion about which prints GYPI actually controls for infringement claim purposes, the court gets down to addressing the supposed infringement. Discussing the safe harbor provisions, the court finds Zazzle qualifies for these protections. Sort of. The court says Zazzle qualifies as a provider of online services and, thanks to GYPI never sending any DMCA notices, it had no knowledge of the infringement.

That's where the court's reasoning starts swimming in non-concentric circles. As Eric Goldman points out, the court's legal math doesn't add up when it decides there's something Zazzle could have done to prevent the alleged infringement. Goldman comments on the court's strange determination:

“Zazzle had the right and ability to control the types of products it produced,” in contrast to how eBay/Amazon allow vendors to select which products to sell. This is a non-sequitur because the alleged infringements are attributable to the images selected and uploaded by Zazzle’s users. It’s irrelevant to the alleged infringement what cut of T-shirt is selected by Zazzle and who manufactures the raw materials.

At this point, Zazzle should still be protected from the infringement committed by a user. But that's not how the court sees it. The court sees an infringing uploaded image (where Zazzle is still protected) being turned into a physical product and decides this is the point where Zazzle loses its safe harbor. From the decision [PDF]:

GYPI argues that Zazzle had “the right and ability to control” the sale of infringing products because “it is actively involved in selecting the products that are sold, pricing those products, selling the products, manufacturing the products, inspecting the products, and finally packaging and delivering the products.” Doc. 50-1 at 27. Zazzle does not dispute that it engages in these activities. The Court concludes that Zazzle had the right and ability to control the types of products it produced. Unlike eBay or Amazon, Zazzle’s role is not limited to facilitating the sale of products owned and marketed by third parties. Zazzle creates the products. If Zazzle lacks the right and ability to control the sale of products it creates, it is hard to imagine any defendant that would have such a right.

Without the uploads, there would be no infringement. Zazzle may benefit indirectly from the sale of products with infringing images, but the court still feels Zazzle should be held accountable even if it has almost no direct input in the physical product creation other than forwarding the order to the print-on-demand contractor. As Goldman pointed out, the reasoning doesn't add up. But that's OK, says the court, Zazzle's reasoning doesn't add up either.

Zazzle argues that it lacked the ability to control the sale of infringing products because, in practice, “the production process was effectively automatic . . . after a product was ordered and approved by Zazzle’s CMT [content management team].” Doc. 69 at 25. That is a non sequitur. It doesn’t matter if Zazzle lacked the ability to control its production process after CMT approved the product; presumably CMT had the authority to reject products that were infringing. More to the point, even if the entire process were automatic, that would suggest at most that Zazzle had chosen not to exercise its right and ability to reject infringing products, not that it lacked the right or ability to do so. GYPI is entitled to summary judgment that Zazzle is not protected under § 512(c) to the extent it manufactured and sold physical products bearing infringing images.

There is no further attempt made to explain the court's rationale. For some reason, it can't seem to get past the production of physical products, even though Zazzle claims it has no more control over that than it does over uploaded content. In effect, the court sets up a double standard: physical vs. digital. Zazzle is protected if users upload infringing images but not if customers decide they want a copy of this image on a t-shirt or poster.

The CMT mentioned above sounds like little more than a perfunctory infringement check similar to the one that accompanies each image upload. And if the court decides to untwist Zazzle's "non sequitur" and hold it up for examination, Zazzle shouldn't be able to avail itself of DMCA safe harbors at the point of image upload either. The decision is internally inconsistent. Given the number of print-on-demand companies out there, this bizarre internal split on physical/digital infringement could cause problems down the road.

Filed Under: copyright, dmca, print on demand, printing
Companies: zazzle

Hillary Clinton PAC Sends Bogus Takedowns Over Parodies On Zazzle And CafePress

from the where-does-hillary-stand-on-parody? dept

Not this again. We've noted many times in the past that the two popular "print on demand" t-shirt/merchandise operations online, CafePress and Zazzle, too frequently seem to quickly take down content based on bogus legal threats. Last year, after Zazzle caved in to threats from Homeland Security and the NSA over parody logos, a lawsuit was filed by Dan McCall, whose designs were taken down. The geniuses in the US government realized they were in trouble and admitted that there is no violation in parody logos.

You would think, therefore, that when these sites received demands to take down more designs posted by McCall, they'd think twice. But no such luck. Both Zazzle and CafePress took down the following design that McCall had posted: Even more ridiculously, at first neither site would tell him why or even who complained (Zazzle eventually did, but refused to say what the legal reasoning was, citing non-existent "confidentiality"). But it wasn't too difficult to guess. That's the design for Ready For Hillary, a political action committee (PAC) that is obviously working on the pre-campaign for Hillary Clinton's all-but-certain run for the President in 2016. Following a request for more information, both CafePress and Zazzle appeared to take a rather generic form-letter approach to the situation.

Thankfully, Paul Alan Levy from Public Citizen (again, who has represented us in the past as well) has sent one of his masterful demand letters to Ready For Hillary explaining to the PAC why this situation is ridiculous, why it has no legitimate claim for a takedown, and giving the PAC three days to retract the takedowns or face a legal action for declaratory judgment of non-infringement -- including seeking damages for lost sales and attorneys fees for frivolous takedowns.

The communications from Zazzle and CafePress do not reveal whether your client's claims are based on copyright or trademark; Ready for Hillary could have threatened these companies with either to take advantage of the fact that, although 47 U.S.C. § 230 generally gives providers of interactive web sites statutory immunity for content provided by another, the immunity does not apply to intellectual property claims. However, the difference does not matter, because in either case McCall's use is plainly parody. McCall uses the "I'm Ready for" words and design derisively, replacing the word "Hillary" with the word "oligarchy." This is a reference, in part, to the recent discussion of the increasing tendency of American politics to reflect rule by oligarchy, rather than by true democracy, as reflected in a recent paper by Martin Gilens and Benjamin Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens. The parody refers more specifically to the prospect that the 2016 presidential election may be a contest between a member of the Clinton family and a member of the Bush family. Nobody could possibly look at McCall's design and think that it is sponsored by your committee or, indeed, by its candidate, so there is no actionable likelihood of confusion. Moreover, even assuming that you had a registered copyright in the Ready for Hillary design, McCall's product represents non-commercial commentary on the copyright holder and cannot possibly interfere with sale of the copyrighted work.

Moreover, critical speech directed at a candidate for president is squarely protected by the First Amendment, hence any application of trademark law to quash such uses is highly suspect. Although McCall's products are sold, their contents are noncommercial speech, which qualifies for full First Amendment protection....

The staff of Ready for Hillary should know better than to send frivolous takedown demands like these. We would, however, prefer to resolve this controversy without litigation. We are, therefore, giving Ready for Hillary three days to retract its takedown demand. Absent a retraction, we will file an action for a declaratory judgment of non-infringement, seeking damages for lost sales and an award of attorney fees for the issuance of a frivolous takedowns.

Levy, in the blog post linked above, also has harsh words for Zazzle and CafePress for caving to the takedown demand:

Although Ready for Hillary bears the main responsibility for the takedown, the spineless response from Zazzle and CafePress is disappointing – both companies removed the design without any apparent consideration for the rights of its customers to comment on prominent political figures through parody. When McCall asked for an explanation, both companies responded with generalities (here are the emails from Zazzle and CafePress). The companies' unwillingness to provide copies of Ready for Hillary’s actual takedown demands prevented McCall from focusing his arguments on the PAC’s actual claims. CafePress simply ignored a request for a copy; Zazzle outright refused on the ground that takedown communications are “confidential” (because caving in to frivolous takedowns is so embarrassing?).

In past years, we have found CafePress to be tougher in its responses to foolish trademark claims, refusing to remove designs and going so far as to bring its own declaratory judgment action against the Republican National Committee when it persisted in claiming that designs using its elephant logo to comment for or against various candidates in the primary, and for or against the Republican Party itself, violated its trademark rights. That both companies have been so supine in their responses to takedown demands as we begin the 2016 presidential election season is a discouraging sign for the vitality of free debate about the major candidates.

Filed Under: copyright, dan mccall, free speech, hillary clinton, pac, parody, paul alan levy, ready for hillary, ready for oligarchy, takedowns, trademark
Companies: cafepress, ready for hillary, zazzle

Trademark Holder Sends Cease-And-Desist To Zazzle Over Products Using 3,000-Year-Old Greek Letter

from the once-again-removing-the-'intellectual'-from-'intellectual-property&# dept

Over the past few days, an IP battle has erupted at print-on-demand service Zazzle over a 3,000-year-old Greek letter. New York artist Paul Ingrisano was granted a trademark for the following symbol, apparently in reference to his initials.

This safely stashed in his pocket, he directed attorney Ronald Millet to order takedowns of infringing merchandise. Ingrisano's cease-and-desist demanded that Zazzle not only remove any items including the pi symbol (with or without the full stop) but to provide a full accounting of what had been sold and cooperate on a full audit of pi-related merchandise sales. The letter warned that failing to do so would open up Zazzle to accusations of "willful infringement."

The proper response -- a tersely worded hahahawhat? letter -- was nowhere to be found. Instead, Zazzle yanked a bunch of merchandise and told vendors/customers they were free to file counterclaims, but otherwise it wouldn't be reinstating products. (Zazzle has since reversed course and has restored many of the removed items, while thanking its community for feedback, but never actually apologizing for the quick trigger takedowns.)

Ingrisano's trademark, as ridiculous as it is, contains a period at the "end," something most pi-related merchandise does not include. (People have also pointed out that his trademark appears to be a direct copy of Wikipedia's pi image.) On top of that, the trademark covers a very narrow category of goods (albeit one that could be read expansively).

Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms

This narrow category would exclude many of the items taken down by Zazzle to comply with the C&D. His attorney's letter doesn't specify which sort of items are infringing and worse, makes a general claim over the pi symbol itself, rather than Ingrisano's registered pi-and-full-stop.

It has been brought to our client's attention that your business… has been using the mathematical symbol "pi," referred to herein as the "pi trademark."

That claim isn't remotely true. The trademark registration actually says this:

Description of Mark: The mark consists of the pi mathematical symbol followed by a period.

This appears to be Ingrisano attempting to cash in on the work of others. With ridiculous trademark in hand (and a willing attorney in tow), he's now attempting to enforce his trademark, starting with a whole lot of Zazzle users who aren't even using the registered mark. His lawyer at least seems to understand that this legal action isn't going to be warmly welcomed.

Attorney Millet defends the cease-and-desist letter. He says that to his knowledge none of the designs sold through Zazzle included the exact trademark π.—pi followed by a period—but some of them were confusingly similar to his client’s design.

“Some clearly have a pi sign and look similar enough that folks out there might confuse it with products that my client also sells,” he says. “I saw the back and forth on the blogs of some of the sellers on Zazzle expressing their disappointment. I can see that as an understandable reaction, from a personal standpoint.”

That's great and all -- an attorney with some intact humanity -- but "confusingly similar" apparently means the pi symbol itself, at least in this context. When the only difference between a registered trademark and an ancient Greek letter is a period, everything is "confusingly similar." And as for his claim that these products might be "confusing" for people seeking Ingrisano's goods, it would help greatly if he could point to anything as evidence of his client's market presence. (Zazzle customers have only been able to track down this single Etsy listing, which is decidedly not athletic apparel.)

Of course, Millet may not be the best person to be tasked with enforcing trademarks, seeing as he states the following (and in all-caps) in the C&D's opening paragraph.

Accordingly, you are hereby directed to CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT.

Yeah. That's not even what's going on here.

Kevin Poulsen at Wired asked Millet if Ingrisano had trademarked any other mathematical symbols.

“No,” he says. “None that I’m aware of at least.”

But he is seeking a trademark on this:


Currently published for opposition, it's already run into a dispute from Reebok (which has a trademark on "I3"), which has resulted in the following exclusion being written into the super-long list of products Ingrisano is hoping to market with his co-opted texting symbology.

all of the foregoing excluding special-purpose basketball apparel, namely, basketball footwear, basketball headwear, basketball shoes, basketball jerseys, basketball uniforms, basketball warm-up suits, basketball pants, basketball bottoms and basketball tops

The US trademark office has entertained many, many opportunists, and Ingrisano's trademarked "pi." is no exception. That an attorney might pursue baseless claims on behalf of someone like Ingrisano isn't surprising either, but that says at least as much about Millet as it does for the Brooklyn artist who has yet to enter the same market he's seeking to exclude others from.

Filed Under: paul ingrisano, pi, ronald millet, takedowns, trademark
Companies: zazzle

US Military Looking To Trademark Everything

from the because...-money dept

As we've noted plenty of times in the past, works produced by the federal government are not subject to copyright. However, they are (almost inexplicably) subject to both patent and trademark protection, where those things apply. A little while back, Jim Gourley over at Foreign Policy looked into how the Pentagon has gone trademark slap happy over the last five years or so (the headline of the article falsely implies that it has also gone copyright happy, despite barely mentioning copyright, and in the one spot it does, totally confusing copyright and trademarks).

The program began in 2007 when the Defense Department issued a directive calling for the component services to establish a branding and trademark licensing office, which would answer to the DOD level through a separate office working for the undersecretary of defense for public affairs. Holding to its tradition of being first in the fight, the Marines were the most aggressive in the early going. In 2009, they began contacting large-scale print-on-demand t-shirt suppliers Zazzle and CafePress. It immediately shut down several small online retailers of military-themed hats and shirts. It even came up with rules applying to USMC-themed stuff sold on Etsy.

The other services quickly caught up. Between 2007 and 2011, sales of officially-licensed U.S. Army merchandise increased from $5 million to $50 million

It does note that the military seems to realize that going after small retailers who are selling things face-to-face isn't wise, because "they're probably engaging in healthy patriotism." But, anyone else may be facing a bill from the Defense Department -- an organization that probably has the world's largest budget already. This should raise serious questions about why the US government should be granted trademarks in the first place. Yes, you could argue that the Defense Department doesn't want "shoddy" military merchandise out there, but is that really something the government needs to be concerned about? The US government isn't supposed to be a commercial enterprise. It could easily highlight and focus on "official" military gear to distinguish it from unofficial gear, without having to show up and force everyone else selling military-themed t-shirts that they need to kick back an extra "licensing" fee on top of any taxes they already have to pay.

Filed Under: dod, pentagon, trademark
Companies: cafepress, zazzle

Zazzle & Warner Bros. Pretend All References To Wizard Of Oz Are Covered By WB Copyright

from the there's-a-problem-here dept

Lowestofthekeys alerts us to the situation of one W. Thomas Adkins, who had some t-shirt designs of his own making for sale on Zazzle... until they were taken down in response to a copyright claim. After Adkins requested more info on why his images were taken down, Zazzle explained:

...your product was removed due to an infringement claim by Warner Bros. Studios. While the artwork as you claim is original, the characters from the Wizard of Oz are currently property of Warner Bros. As a guideline, designs from the Wizard of Oz that are currently prohibited for sale on Zazzle’s Marketplace are:

• All inspired artwork and character renderings from the Wizard of Oz
• Quotes from the Wizard of Oz Franchise
• All tags and descriptions that reference the Wizard of Oz

- Zazzle

There are a few problems with this. First of all, characters from the Wizard of Oz are not, in fact, "property of Warner Bros." The original book, written by L. Frank Baum, was published in 1900 and is in the public domain. The popular movie version, in which Warner Bros. holds the copyright, came out in 1939. This does lead to some interesting copyright questions, and a few lawsuits. For example, last year, we wrote about a lawsuit involving t-shirts designed with public domain Wizard of Oz images. And then there's a brewing fight over whether or not Disney can make a film based on the public domain parts of the Baum books if it makes no reference to the 1939 movie.

Basically, what the law has said is that if you're making references to the specific characters or character traits that were portrayed in the movie, but which are not from the books, then its under WB's copyright. So, if you were to display pictures of the actual actors or specific expressions or outfits that are from the movie, but not the books, then there's an issue.

From Adkins' post, however, it appears these were the images on the t-shirts that were removed from Zazzle:

It is difficult to see how either of these come anywhere close to infringing on WB's copyright. The first one merely displays a witch's pointy hat. While it seems that the origin of the pointy, wide-brimmed witch's hat has been lost to history, the various reports online suggest it long pre-dates 1939 and the movie. In fact, it appears that images in the original books show the witch in a pointed, wide-brimmed hat. So the hat is not copyright to Warner Bros.

Then there's the flying monkey. Problem being... the flying monkeys were in Baum's books, and Adkins' drawing is quite different from the version in the movie.

The concept of water melting the witch? Also in Baum's books, and as Adkins details in his blog post, it way predates the Oz books anyway.

Basically, everything in Adkins' images appear to reference the original Baum books and not the movie. Assuming Warner Bros. did make a copyright claim, as Zazzle's email stated, then it is engaging in copyfraud here and asserting copyright against images it has no rights over.

That said, Adkins also exaggerates his own rights in his response to Zazzle, which he posted. After explaining to Zazzle why his works did not infringe on WB's copyright, he unfortunately goes on to say:

As such, I respectfully request that my material and corresponding artwork be returned to circulation for purchase immediately.

Failure to do so would be an infringement on my copyright of my created artwork which, as verified by the testimony above, does NOT infringe upon Warner Bros. Entertainment’s copyright on the 1939 film or the specific celluloid representations of the characters made in said film. If my copyright continues to be infringed upon I will seek legal action against both Zazzle and Warner Bros. Entertainment.

Uh... no. Zazzle choosing not to display your work is, in no way, copyright infringement. As a private company, Zazzle has every right to refuse to display any particular work, even if its reasons are dumb. The public (and people like Adkins) are free to mock them, but there is no copyright issue there, and especially not infringement by Zazzle. The service certainly does not have the greatest reputation because of its quick trigger finger in pulling down perfectly legal content, but that doesn't mean it's illegal. Claiming that not displaying someone's work is infringement is just ridiculous, and takes away from Adkins' otherwise strong arguments.

Either way, the original point stands: Adkins' works don't appear to be infringing WB's copyrights. If WB did make the claim, it appears that WB went way too far. Adkins should have just filed a standard counternotice to Zazzle, and one would hope Zazzle does the right thing and puts the works back up.

Filed Under: copyfraud, l. frank baum, public domain, wizard of oz
Companies: warner bros, zazzle

Zazzle Blocks '1-Star Review' Mug, Gets Even Worse Review From Instapaper Creator

from the coffee-filters dept

In yet another example of overactive copyright law blocking legitimate content, we find this story from Marco Arment, creator of Instapaper, about Zazzle's abrupt and unfriendly treatment of its supposedly (but not actually) infringing customers.

Marco, who is no stranger to copyright concerns, recently used Zazzle to sell a jokey mug based on bad reviews of Instapaper:

Later in the day, after the mug had racked up 116 sales, all the customers were told that their orders had been cancelled because the mug violates Zazzle's acceptable use policy—apparently the "design contains an image or text that may be subject to copyright."

May be subject to copyright? Anything and everything may be subject to copyright. If that's the bar they're using to determine what's allowed on Zazzle, nothing will exist there at all. Besides, usually when you come across something that may have a problem you check to find out if it actually does. But that's not what happened here.

Meanwhile, Marco himself got nothing—Zazzle gave him no explanation at all. Of course, it's important to pick your battles, and even though Marco knows damn well there's no issue of this "maybe" infringing (there is no infringement), he has no intention of fighting this. Instead he's opted to send a message on his (quite popular) blog:

"Now I just know that Zazzle sucks, and I’ll never do business with them again."

And, because Zazzle may suck, perhaps you won't want to do business with them either.

It's not entirely clear what led to Zazzle cancel the orders, but since Marco was never informed about a complaint, it was probably an automated filter, possibly with some lax human review. But computers aren't very good at identifying copyright infringement, and neither are most people‐not even rightsholders themselves. That's not really surprising, since copyright law is insanely complex, but online services that feature user-generated content still face all sorts of pressure from various industries, insisting they somehow magically detect and stop all infringement. Some cooperate, so you end up with overactive filters that inevitably block all sorts of legitimate content—then you end up with rightfully pissed off customers complaining in public.

Filed Under: filter, marco arment, takedown, user generated content
Companies: instapaper, zazzle

Twilight Studio Issues Another Bogus Takedown, But Is Zazzle Partially To Blame?

from the the-plot-thickens dept

Well, this one's weird. We recently wrote about the attempt by Summit Entertainment (the folks behind the Twilight movies) to claim ownership of a date, issuing a takedown notice over a painting by Kelly Howlett because its creation date (and title) matched a Twilight movie release date (seriously). Now, Mary Jo Place (who goes by the handle Mojo) writes to tell us about her own similar and even stranger situation, in which Summit took down some of her Zazzle merchandise because... well... that's anyone's guess.

The work in question is an original painting called "Sheep Are Pretty Stupid", copies of which she was selling on a variety of merchandise through Zazzle. The products, which again have absolutely nothing to do with Twilight, had been up for a few months before she received a notice from Zazzle, telling her they had removed some of them because of a complaint from Summit. Oddly, it was only the iPhone/Pad/Pod cases that were taken down—not the t-shirts or any of the other merch, even though all the items bore identical descriptions:

Sheep Are Pretty Stupid.
Yes, they are, but you don't have to be numbered among them! Mojo suggests you go AGAINST the crowd by buying one of her sheepie shirts. Or mugs. Or, whatever. Several years ago, I decided I wanted to paint my own Christmas card of the whole lion-and-lamb thing, only from a more, uh, realistic perspective. This is the result.

The email from Zazzle also suggested that the problem could be the search tags, but those (again shared identically by all the merchandise) were mojo, crap, craptacular, sheep, lion, and lamb. Nothing there that suggests Twilight either, except possibly crap. Understandably baffled, Mary Jo contacted Zazzle only to receive a condescending canned response informing her of their duty to abide by intellectual property law. She wrote back again, and actually linked to our coverage of the other takedown, but got nothing back. So she started digging, which brought her to Kelly Howlett's Facebook note about her situation, where she saw something interesting in the comments—and this is where things get weird:

Since Mary Jo's items were gone, she couldn't check to see if she was having similar tag problems. Nevertheless she emailed Zazzle again, included screenshots of the comments and suggested that this may be what happened. A little while later, she received another canned response from Zazzle telling her the products had been restored, but still offering no explanation whatsoever.

All this creates one big question: is Zazzle doing some sort of automatic tagging, which is then triggering false takedowns? If so, that's a pretty big mistake by Zazzle—but some cursory Googling and digging through their help forums doesn't reveal any references to an auto-tagging or community tagging system. If any readers are Zazzle users and have experienced something similar, or have any insight into this, please share it, because nobody seems to be able to figure out what's going on.

Filed Under: bogus takedowns, censorship, takedowns, twilight
Companies: summit entertainment, zazzle

Summit Entertainment Claims To Own The Date November 20, 2009; Issues Takedown On Art Created On That Day

from the hello-ip-fraud dept

Summit Entertainment, the movie studio behind the Twilight films, is no stranger to ridiculous-to-insane overreaches of intellectual property law. In fact, the studio seems to make a habit out of it. The company has sued Zazzle because some of its users made fan art inspired by Twilight. It's shut down a Twilight fanzine. It's said that only it can make a documentary about the real town where the fictional Twilight story is based. It's sued to stop a fashion designer from factually stating that a character in one of the movies wore its jacket. It shut down a silly 8-bit YouTube game. It issued a takedown on a song that was written years before the Twilight movies. It went after Bath & Bodyworks for daring to to sell a body lotion called Twilight Woods, which had nothing to do with the movies. It aggressively sued a fan and pressed criminal charges for tweeting some behind the scenes photos of a Twilight movie. It also sued the guy who registered twilight.com back in 1994.

This is a company that thinks that the world revolves around its trademarks, and it appears to have little concern for what the law actually says.

Its latest move is particularly asinine. The company came across the following lovely image created by artist Kelly Howlett and posted to Zazzle, and issued a takedown. If you're thinking that image has absolutely nothing whatsoever to do with Twilight, or any other Summit property, you're entirely correct. But it turns out that Summit Entertainment has decided it owns the date 11-20-09 (that's Kelly's Facebook explanation of what happened, found via Bleeding Cool), which was the date the sketch was created, and what it was tagged with. It also happens to be the date that the Twilight movie New Moon was released.

Summit has no legitimate claim here. At all. And yet it took the artwork down anyway, because that's the kind of IP abusers they are. Zazzle eventually came to its senses and restored the image, and Howlett is offering it on Society 6 as well. If Summit Entertainment had anyone with a soul working for them, they'd buy a few hundred prints to apologize.

Either way, the company has such a long and consistent history of abusing intellectual property law, isn't there a point at which we just say that the company no longer deserves any such power? If you regularly abuse monopoly privileges, shouldn't they be taken away?

Filed Under: dates, ip abuse, ip fraud, kelly howlett, november 20th, painting, takedowns, trademark
Companies: summit entertainment, zazzle