Tuesday, December 19, 2006

Cafepress and Copyright Issues

Disclaimer: IANA lawyer

Dianne Courage, a good friend of mine who's started a Cafepress shop called Take Courage, recently asked me about copyright issues regarding her plans for new designs. She's just getting started, but you should watch her shop, because she's very talented, and I'm sure she'll end up with one of the best shops at Cafepress.

Well, I know a little bit about copyright, so I thought I'd endanger the public by posting my understanding of a few of the issues...

You may or may not be allowed to combine your work (designs, images, or words) with the work of others, depending on several factors:

If the other person's (or organization's) work is not protected, you can do anything you want with it. It's not protected if the other person never acted to protect it, or if they protected it but the protection has expired. Many works by the U.S. government are in the public domain, meaning they're unprotected, and others (such as NASA photos) may be used if you abide by their guidelines. Patents and copyrights expire, but trademarks do not.

If the other person's work is protected, you can negotiate with them to buy the rights to use their work. This is too expensive and time-consuming for use with Cafepress, so if you can't use it under fair use (see below) then just design something else.

If the other person's work is a design, they could have patented it. If the other person's work is an image or words, they could have acquired copyright or trademark protection.

Copyright means you are not allowed to copy the entire work, unless your purpose is clearly to parody the original. For copying part of a work, copyright law includes a "fair use" concept, but there is a substantial amount of disagreement (legally and otherwise) over what constitutes fair-use. Generally, you can use a small percentage of someone else's copyrighted work if you are not trying to compete with them. For example, you can't take someone else's complete poem and put it in your book of poetry (even with attribution), but you may certainly take a phrase of theirs and describe why you like that phrase, or explain it's meaning.

Trademark means they're using their image or words to identify their business, such as "McDonald's" and the golden arches symbol. You can use trademarked images or text, as long as you use them in a way that will not cause people to think that you are the company with the trademark. For instance, you can name your plumbing company "McDonald's" because no one is likely to mistake your pipe truck for a restaurant. You may not open a fast-food restaurant and name it "MacDonald's" because any court would rule against you that you were trying to "trade on their name" even though it wasn't exactly the same. Could you buy a sidewalk hot dog cart and put a sign on it that says "McDonalds"? That's a grey area, and a court might rule either way -- if you're name is Joe McDonald, and you don't name your hot dogs "McDogs", you'll have better chances of being allowed to keep the name.

How do you know if a work is protected? You can do patent and trademark searches via the U.S. Patent & Trademark Office's web site. For copyright, the rule of thumb is, if it's published, then it was copyrighted as of the publication date.

Are you allowed to quote speeches or statements by public figures and entertainers, without their permission? I believe you may, as long as you give attribution. Even if I am right, however, take warning: nothing may quell the insatiable lawyers-on-retainers...

Now, here's some inside info regarding these issues specifically regarding creating and using designs on Cafepress products. A symptom of THERE ARE TOO MANY LAWYERS is that Cafepress is being continually contacted and/or harassed by attorneys demanding that Cafepress take down this or that design, sometimes with good reason, sometimes not. I'm convinced some are trying to rack up billable hours so desperately, that they don't care about what is reasonable, fair, or even legal.

Lawyers for The Spy Museum contacted Cafepress regarding my "Shhh" design, saying it violated the Spy Museum's trademarks. This was a totally spurious claim, as there is no way anyone would mistake the Elf Ink shop for the Spy Museum. And if that wasn't enough, I looked up their trademarks, which covered "Shh" and "Shhhh", but not "Shhh". Cafepress forwarded the lawyer's demand to me, and asked me what action I wanted to take, and I told them that I was convinced I was within my rights to leave the design up, and that it was not harming the Spy Museum in any manner, and Cafepress stood by me. Three cheers for Cafepress! If that law firm tries to push this issue further, I'll post their emails, and my replies, on this blog.

So, Cafepress gets pestered frequently on these issues, and we don't want to cause them unnecessary headaches, so here's what I suggest. If you want to quote Jay Leno on a Cafepress design, go ahead, but don't tag (label) the design with Jay's name. For instance, if you have an image of several big chins, you can add the text "Yeah, I know I have a big chin. --Jay Leno" to the image, and you can use tags like "chin, big, big chin" but don't use "Jay, Leno, Jay Leno". This way you can have your design, and anyone who browses your Cafepress shop can see it, but when the lawyers search for "Jay Leno" with Cafepress's search engine, they won't find your design. By the way, Cafepress has literally millions of designs, so the lawyers will probably only find things by searching, not by browsing. And if they do find it and fuss, just take it down and pray for fewer lawyers.

Hope this helps, John

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