Thursday, February 14, 2013

Zazzle, Fender, and Copyright Issues

Earlier this month Zazzle sent out an e-mail about some copyright issues with Fender (a company which sells guitars).  I hadn't mentioned it earlier because there was a few things I wanted to clarify with Zazzle first about it...but now I have so I'm writing.  Scroll down to read both Zazzle's clarification, and my thoughts on this.

We have some important news for you all. Zazzle has been contacted by legal representatives from Fender, due to an infringement claim. There are multiple reasons that products will be removed from our site, and we will be listing those below.
At this time Zazzle must abide by all requests for product removals due to this claim, products will be removed starting at Midnight tonight, Jan 30th. Below are the models we will be removing for your reference

The aforementioned models are:
·         Stratocaster
·         Telecaster
·         Jazzmaster
·         Jaguar
·         Mustang
·         Jagmaster

Anything on the following list can be cause for removal:

· Brand Name

· Model Names

· Headstock Design

· Instrument Body Shape

· Anything on the website that includes a reference to these Fender models will be removed; images, tags, titles, descriptions etc.

We do realize that for some of you, many products will be removed. We are sorry for this and do not wish to cause you frustration or inconvenience with the removal, we simply must abide by this request and as a conscious business we are trying to make these as easy for our Sellers as we can. We hope that this proactive approach will result in an amicable solution for all parties involved.

You may make modifications to your products should they contain anything that would cause the item to be removed. Again this must be done before midnight tonight or the product will be removed. 

Thank you all for your understanding and compliance.
The ProSeller Team
Becky & Tamara

Now, some people were talking about this letter over on the Zazzle Shopkeepers Facebook Group, and were worried that ANYTHING tagged with mustang or jaguar would be pulled, even if the design pictured an animal, not a guitar.  I was pretty sure that wasn't the case...that those things wouldn't be pulled, just guitar pictured tagged as such.  But I contacted Zazzle about it anyways, and they confirmed's what they wrote:

Unfortunately, due to intellectual property claim by Fender Musical Instruments Corporation, we are unable to carry designs which infringe upon their rights. This includes images of their guitars, headstock design, and word marks. If the product design contains an image of their guitar and contain "Fender Jaguar" in the description/keyword, it would indicate the product is referencing their brand.
The terms "jaguar" and "mustang" may be used if the product is not referencing their instruments. For example, and image of a jaguar (animal) may use keyword/description "jaguar".
If you have any further questions, please don't hesitate to contact us.
Thanks for using Zazzle. We look forward to seeing more of your creative designs!
Best Regards,
Content Management Team

Out of curiousity, I wrote a friend who is a both an artist and guitarist and a fan of Fender guitars.  I thought what he wrote back was interesting  (and I'm pretty sure he won't sue me for posting it)...

Well, this IS interesting... It's a complex issue. For you to have a trade mark claim, you have to defend your trade mark rigorously. When they created their iconic instruments in the 50s, they had a legitimate claim. The consensus in the industry with respect to body shape is, too little too late. Fender has let Asia knock off those body shapes for at least 50 years. However, the Spaghetti and Brush logos, and the headstock design ARE distinctive, and relative un-polluted, so I think they do have a legitimate claim.

So, two things are at work here, they MUST defend the trademark AND they have learned how lucrative the accessories market can be. And they know lawyers who know lawyers.

So, my personal take... As an artist, I think we are on shaky ground when ever we use some one else's work to make a product that we profit from. I do wish they would come up with a reasonable licensing policy for people who manufacture things that FMIC generally does not, like stationary, so fans could have access to that. What I find sad is, there are some things that may have legal legitimacy, like parody or fair use, that I am sure Zazzle does not have the money and lawyers to fight for, so it all comes down because it's easier. I don't think "it's easier and cheaper" has any place in the pursuit of justice. Sadly, our national leaders clearly do. As a musician, I generally love their instruments and am inclined to own a few. So, that ought to be enough to at least start a dialogue.  
- Brian Norwood (Artist Website, Reverb Nation Page)

Now, for my thoughts.  While I think that they do have a legitimate right to protect their brand and their product from infringement,I'm not sure that artwork or photography depicting their guitars should qualify as a legitimate infringement, especially if the main focus of the artwork or photo is not the guitar, but something else (a musician playing a guitar that happens to be a Fender, for instance).

Here's the issue for me...while part of a fender guitar's appeal is most certainly aesthetic, and you could even call it's shape artistic, its main purpose in not purely aesthetic or artistic.  In essence the product is a musical instrument--so to defend it's trademark and patent it should not have to defend against people making images depicting their guitar to rightly maintain their right to be the only guitar maker who makes guitars in that shape and style.

However, I know that accessories such as t-shirts featuring their guitart could be a huge money-maker for fender, so I do see how there could be some legitimate claim to loss of revenue there.  But I'm a little concerned about what that could mean  for artists and photographers if that was actually upheld in court.   It could essentially mean that any time any artist painted or photographed any REAL object that was manufactured by a company in the last 90 or so years--whether that was a car, a toaster, a house, a piece of furniture, or a bottle they found on the beach--that they could possibly be breaking copyright law.  THAT is a scary prospect. 

I am a fan of copyright for it's protection of artists...I'm not anti-copyright.  But I do think that limitations need to be places on copyright more than there are now.  And those need to be spelled out in LAW, not just in the courts, because there is too much that is too vague and the courts are an expensive place for "the little guy" to test these waters in.  I've written Zazzle and Fender about this not because I have one iota at stake here (no guitar, jaguars OR mustangs in my shop), but because I can see where this type of thing could be heading.  My next step is writing my congressmen and senators about adding some common sense restrictions on copyright law.


Side note:  While I prefer Zazzle to CafePress on many, many things as a shopkeeper, fighting frivolous claims of infringement, while Zazzle just pulled stuff  (not that this particular case if frivilous).  A prime example is the GOP, who asked both these companies to take down a VERY BROAD array of stuff.  Zazzle just took the stuff down, while CafePress (and Screened I gather) fought it and won (see article here).  That's not the only case I know of, but it's a good example. 


  1. I had some Helen Steiner Rice products from zazzle on my lens and the Helen Steiner Rice foundation contacted me to remove the products as there was no permission given to make them.....and to remove them from zazzle as well. Of course they weren't my products so I couldn't do that. I did contact zazzle about it, but really that should have been the foundations responsibility.

    1. Yeah, I think most people who visit Zazzle and haven't shopped there have no idea how it really works. They don't understand the difference between Zazzle as a whole and the individual shopkeepers. And as a blogger of course you had no idea that the shopkeeper who made those didn't get permission to use Helen Steiner Rice's picture (or name or whatever).

  2. I've run into similar problems with Zazzle wherein they claim that they can't produced products containing anything with a reference to "_________". This is a complete misinterpretation and actual violation of what the DMCA actually states — there's simply no such thing as a "blanket takedown". The DMCA states that services such as Zazzle must consider every case to be individual, and the courts have further judged that a service must consider fair use prior to taking down a user's material. Unfortunately, Zazzle continues to just ignore Fair Use and much of the DMCA, taking the ultra conservative stance that any whiff of a potential claim is reason enough to remove a user's material. They are definitely NOT on the side of artists or designers.

    1. Yeah, I know what you mean. It's the ONE area where CP has proven better for artists than Zazzle. Zazzle does seem to listen to artists on other issues, but they are really litigation shy and seem to avoid anything that could bring litigation, even when the claims are fairly groundless. It's not that I want them to allow everything. Of course I don't want them to let people flat out steal others designs and such, but I think they need to allow more for parody.