Trader Joe's Threatens Man Over Parody 'Traitor Joe' Political T-Shirt

from the parody-to-a-tee dept

The last time we found niche grocery chain Trader Joe's playing intellectual property bully, it was over one enterprising Canadian man who drove across the border, bought a bunch of good stuff from Trader Joe's, and then resold it at his Canadian store called "Pirate Joe's". While that whole setup is entertaining, Trader Joe's sued for trademark infringement in the United States, which made zero sense. The store was in Canada, not the States, reselling purchased items is not trademark infringement, and Trader Joe's was free to open up Canadian stores if it chose.

Fast forward to the present and Trader Joe's is trying to stretch trademark law yet again, this time to go after one man's website that is selling parody t-shirts with a picture of Joe Biden and the moniker "Traitor Joe", all mocked up to look like the store logo. Trader Joe's sent a threat letter to the man, Dan McCall, who was represented by friend of the site Paul Alan Levy.

I recently had the pleasure of representing Dan McCall again — author of such wicked parodies as NSA – the Only Part of Government That Actually Listens (we got to sue the NSA for a declaratory judgment of noninfringement); Ready for Oligarchy (over which we came with hours of filing suit against Hillary Clinton’s exploratory committee); and Bernie Is My Comrade (Sanders’ committee had the smarts to retract quickly). Last week, I sent a response to a demand letter sent on behalf of Trader Joe's from a BigLaw attorney lawyer who, considering his claim to be a "seasoned intellectual property litigator," really should have known better than to subject his client to the Streisand Effect.

You can see the image in question below.

I've included Levy's response embedded below so that you can read it in full. Now, if McCall sounds at all familiar to you, it's because he's made a habit out of annoying large institutions by creating parody logos of their branding. Hillary Clinton, Bernie Sanders, the NSA, and DHS have all come calling for him at some point. This is part of the context of Levy's note that competent counsel really should know better than to send this threat letter: McCall and Levy have been through this before and they'll get through it again.

As to the merits of supposed trademark infringement, well, the response letter does a fairly thorough takedown of any such arguments. Levy starts off by pointing out to Trader Joe's that literally nobody is going to think it endorsed or produced this t-shirt. In fact, the company's own threat letter notes how this puts the company in a bad light, so why would it also think the public would think the shirt came from Trader Joe's?

But the real trump card in all of this is that the t-shirt is protected speech as parody.

Trademark law aside, McCall's use of the image to comment on the President of the United States, while playing on the name of a leading grocery store chain, is speech squarely protected by the First Amendment. Consequently, any application of trademark law to quash such uses would be highly suspect. Although McCall's products are sold, their contents are noncommercial speech, which qualifies for full First Amendment protection.

There's a bit more in there, including an odd copyright claim over some of the imagery and the fact that Trader Joe's invoked the DMCA against McCall even though his company, Liberty Maniacs, is not an interactive website allowing user input, but that's more icing on the cake type stuff. What is made clear in all of this is that Trader Joe's has a legal team that is making quite spurious threats that would be highly likely to be defeated in court.

Filed Under: dan mccall, parody, paul levy, t-shirts, trademark, traitor joe's
Companies: trader joe's

Our Latest Techdirt Gear: I Paid More For This T-Shirt Than Trump Paid In Taxes

from the and-you-can! dept

We were working on some new Techdirt gear designs for our Techdirt Gear shop at Threadless (stay tuned!) when the NY Times dropped its bombshell of a story regarding President Donald Trump's tax returns. As you likely know, despite every Presidential candidate in my lifetime releasing their tax returns, Trump has refused to do so (also, despite promises that he would). For years, reporters have sought out those taxes, and somehow the reporters at the Times got them. There were many interesting things highlighted in those tax returns, but a key point that has resonated widely: in the year Trump won the Presidency he only paid $750 in federal taxes (the same as he paid in many other years as well, including his first year as President in 2017).

Lots of people have been pointing out that this is crazy for all sorts of reasons, and plenty of people, including Joe Biden have jumped in with "I paid more in taxes than Donald Trump" gear. But, here at Techdirt, we believe in... going bigger. So we're selling a "I Paid More For This T-Shirt Than Trump Paid In Taxes" t-shirt... for $751 (plus shipping).

This is a real shirt and you can really buy it. Whether or not it's worth paying $751 for such a t-shirt is a decision that only you can make, though we'd be happy with that kind of support.

Of course, if that's a bit too pricey for you, we do still have a lot of other more affordable gear you can pick up too, like our copyright takedown gear:

Or our 1st Emojiment gear that explains the 1st Amendment in emoji.

And many other designs and products (not just t-shirts, we've got face masks, mugs and notebooks among many other items as well). So shop around, and feel free to spend more supporting us than the President has spent supporting the United States of America.

Filed Under: donald trump, t-shirts, taxes, techdirt gear

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

New Gear By Techdirt: Home Cooking Is Killing Restaurants And Free Speech Pro Tip Are Now Available As Posters!

from the put-em-on-your-wall dept

Get your Home Cooking and Free Speech Pro Tip posters from
our store on Teespring!

Back when we originally introduced these two designs as t-shirts and other apparel, we had quite a few requests for posters. Unfortunately it wasn't an option with our print-on-demand service at the time — but now it is! So today we're launching posters for Home Cooking Is Killing Restaurants and Free Speech Pro Tip, alongside a relaunch of all the previously-available items.

The posters are available in two sizes: 18x24 and 24x36. Plus, you can get the designs as t-shirts, hoodies, mugs and stickers. And don't forget about our recently-launched Fourth Emojiment gear (also available as a poster!) and all the other designs in our store on Teespring.

Filed Under: fire in a crowded theater, gear, home cooking, posters, t-shirts, techdirt

Artist Inspired By Andy Warhol, Creates Truly Astounding Work... Ends Up Giving It Away Over 'Copyright Infringement'

from the copyright-suppressing-artists dept

Well, here's yet another crazy story of copyright interfering with art (ht to Jean for sending this over). Buckle in, because there's a lot to explain, starting with some truly astounding art, followed by more truly astounding art, with an extra helping of even more astounding art... and then an apparent claim of copyright infringement. What follows is truly amazing work by artist CJ Hendry. Most of this is taken from a long Instagram story in which she documented this entire process, so forgive the image heavy explanation here, but it helps to explain what happened -- so I'll include some explanatory screenshots.

She started with a bunch of Andy Warhol's famous Polaroids, cutting them out of the book of such photographs, and then sketched amazingly accurate renditions of them.

That, alone was incredibly impressive, but then she took it much further. She took her own drawings and crumpled up the papers:

... and then drew new images of her crumpled up drawings of the original polaroids:

Then, she made t-shirts featuring her drawings of the crumpled up drawings that she made replicating Andy Warhol's Polaroids:

If you're not in awe already, you should be. But Hendry kept going. Since this was all an homage to Andy Warhol, she took the homage even further and made up her own Campbell's style soup labels, put them on cans and put the t-shirts into the cans.

She was intending to sell each of the t-shirts in the cans, which would have been amazing... but then, copyright (maybe?) apparently got in the way.

It's not entirely clear who stepped in -- Hendry insists it was not the Warhol Foundation -- but suddenly that the sale has been cancelled:

If you can't read that, it says:

Thanks to everyone for the lovely messages about the tees sorry for letting you all down.

Believe it or not it had nothing to do with the Warhol Foundation, another organization completely.

Just for lolls I will probably bring out a tee as a massive spoof of the whole thing because why the heck not.

Stay tuned...

So, instead of selling them, she packed up each of these amazing cans, placed them in bright red boxes, labeled "Copyright Infringement -- Trash Only":

...and then has been placing them randomly around New York City for people to find, posting pictures (and addresses) on Instagram. I'm actually going to New York City in two days and am pissed off I'm going too late to find one of these amazing boxes and t-shirts.

Again, it's not entirely clear who is behind this. The book publisher Taschen published the book of Andy Warhol's Polaroids, so perhaps they have a copyright interest here? The only other one I can think of would be Campbell's Soup, though that would be crazy. Of course, a decade ago, we wrote about the letter that Campbell's Soup sent to Warhol back in 1964, joking that if Warhol had tried to do the same thing today, he undoubtedly would have received a cease and desist from a humorless corporate trademark lawyer. Instead, Campbell's celebrated Warhol's creativity:

It is too bad that the modern equivalent has been shut down via at least some sort of intellectual property threat.

Filed Under: andy warhol, art, campbell's soup, cj hendry, copyright, infringement, polaroids, t-shirts

For July 4th, Make Sure To Order Your NSA-Approved T-Shirt

from the it's-the-right-thing-to-do dept

A month ago, we took a bunch of public domain/FOIA'd NSA "security posters" from the 1950s, 60s and 70s, and turned them into some pretty terrific retro style t-shirts. We're not publishing today as it's July 4th, and we thought: what better way to celebrate July 4th than to order some NSA-approved t-shirts (or mugs or hoodies)? They're real conversation starters. You can see the whole collection at our Teespring store.

Of course, we've heard from some people that they're not sure which NSA poster they want on a t-shirt or mug -- so I thought for the holiday, I'd share some information on which ones are most popular so far. At the top of the list we've got the groovy "Secure All Classified Material" design:

In close second is my favorite, "Security for the Seventies." Don't be left behind.

Those two are by far the most popular. After that, far behind those two, we have a cluster of another 5 designs that people seem to like. There's "Up Tight and Out of Sight" which looks more like an album cover than a security poster:

There's "Be Sure to Vote Security" -- which you can't really argue with:

Another popular styling one is the "Lock Before You Leave" footprint:

There's certainly something practical about the recommendation to "Tighten Security Practices":

And finally, who can pass up this good advice: "Do Not Discuss Classified Business Outside Authorized Areas". I have to imagine this shirt must make for quite the conversation starter...

Check them out, get a nice t-shirt, mug or hoodie -- and support Techdirt in the process.

Filed Under: july 4th, nsa collection, security, t-shirts

New Gear: The NSA Collection

from the approved-for-release dept

Recently, the folks at Government Attic filed a FOIA request that garnered a very cool response: a collection of posters made by the NSA in the 1950s and 60s to remind its employees about security. It wasn't long before we got some requests to put them on t-shirts in the Techdirt Gear store and so... that's exactly what we've done!

You can now get 24 of the NSA's posters (with more coming soon) on premium t-shirts, hoodies and mugs from Teespring. Check out our store for the full NSA collection, or click the images below to go directly to the ones you like most.

Filed Under: gear, nsa, security, security posters, surveillance, t-shirts

Limited Edition Gear For Our Friends In The UK: Necessary Hashtags

from the unnecessary-t-shirts dept

Available For One Week Only: Necessary Hashtags Gear From Techdirt
UK/EU Shipping | US Shipping

Ever since UK Home Secretary Amber Rudd offered up her confused ideas about internet censorship, the somewhat meta hashtag #necessaryhashtags has been busily buzzing away with quips at her expense. For those of you who are in on the joke, and especially our UK readers for whom I'm sure it hits closest to home, we've launched a new limited edition line of t-shirts, hoodies, mugs and stickers available only until Monday, April 3rd.

Also, consider this UK-focused offering a celebration of the fact that all our gear now has European shipping options available that should make things much less expensive for overseas buyers. When you check out any of our products with an IP address from outside the US, you should be given the option to choose your fulfillment center — but sometimes with new shirts there is a delay before this automated setup is in place, so you can also look for the link in the product description on Teespring. For now, here are the separate links for UK/EU shipping and US shipping for this latest design.

Check out the Techdirt Gear store for Necessary Hashtags and more »

Filed Under: #necessaryhashtags, amber rudd, necessary hashtags, t-shirts

Takedown Gear Is Back Up! (Plus Another Returning Design)

from the old-favorites dept

Takedown and Math Is Not A Crime are back in the Techdirt Gear store »

As promised, over the next few weeks we're going to be bringing back most of last year's designs in the Techdirt Gear store on Teespring, and today we've got our first returning champions: the long-time favorite Takedown tee and the surprisingly controversial Math Is Not A Crime gear.

We've also got some brand new designs coming soon, but for now this is your chance to get one of these designs if you missed them last year! You can also help us out by sharing the store with friends — and we love seeing photos of Techdirt gear in the wild when you tag us in them on Twitter.

Check out the Techdirt Gear store for these returning designs, and more »

Filed Under: dmca, gear, math is not a crime, t-shirts, takedown