Understanding Compliance with Content Useage Policy

 If I see it in the markteplace it must be OK

What you see in a POD marketplace is usually not a good guide to what is allowed. You have no way of knowing just by looking whether the person posting the design is the owner, has obtained permission, or whether they just haven't been caught yet. Most PODs have some well known figures among their shop owners ranging, depending upon POD, from Snoopy to Star Trek to Disney and everything else. Some businesses are more open to licensing than others. In most cases designs are not screened in advance. They get removed when someone brings the PODs attention to a problem.

 I got my design pulled but I know it is legal.

Most POD rules are more strict than what the law requires. Even being in the right it costs money to defend so the risks of incurring those costs either have to be worth it, or avoided. Typically the POD decisions to remove a design are about risk and policy, not what the law is. You can't take a decision as an indication of what the law is. If you want to fight the legal battle the POD will typically restore your images when you present them with legal documentation that you have won your case or settlement entitling you to continue publishing.

The rules for copyright, trademark, right of publicity, right of privacy, etc are different. You can meet the requirements for one, and still violate the others. For example, just because you drew something doesn't mean you can use it commercially. Conversely, even if the subject e.g. a politician is OK, the image source still has to comply with copyright rules. Images of politicians are not automatically public domain. Similarly, lack of commercial purpose might be a defense in many trademark situations, it is no protection in copyright infringement. Also, the rules for public commentary are different from the rules for sales of products.

The area of parody is particular confusing to some because it is, indeed, legal to use parody even on commercial products. The problems, however, are many. People confuse satire with parody. Satire is not protected. To make use of the protection you have to be ready, willing and able to defend it in court. It is a defense to a law suit. Those who are involved regularly in public commentary such as comedians, newspapers and magazines also get sued regularly. They build those legal costs into the costs of doing business. The POD has its own business decisions to make and they aren't likely to take on your battle for you.

 

 

 My design got removed but another one was allowed to stay.

Most of the legal issues are very situation specific. Situations that appear to be similar may have very different results. And again, see above, you have no way of knowing what arrangements might have been made to allow another's design to stay. You can certainly ask the question of the POD. You can expect the answer to be fairly generic. It probably won't explain much about why one was and the other not because the POD cannot provide a legal analysis or legal advice.

 My design has been up for years, and now it gets pulled.
I asked before putting up my design and it got the OK, so why is it getting pulled now?

The law is fluid and deciding what applies is a matter of judgement. What is OK today may not be OK tomorrow. What was not allowed yesterday might be allowed tomorrow. Different people viewing the same situation may analyze it differently. If you have an image disallowed spend some time with the FAQs, see if you can figure out why, and if you really think you are right write back explaining why. The worst that will happen is getting a response that says you are wrong and you won't be any worse off than you were.

I don't want to get into trouble, but it seems impossible

All you can really do in the design business is make some reasonable efforts to learn the legal basics, and research your design before posting. If you are going to do designs about topical subjects you will occasionally cross the line. If you consistently make a good faith effort to understand and follow the rules, no one is going to be bothered by that. There is always a risk of getting sued even for accidental infringrement. It just doesn't happen very often. It doesn't happen often enough to lose any sleep over.

If you get a design pulled it does not mean you are a bad person. It doesn't even mean you are necessarily in the wrong. It could just be that someone has made a demand. It is up to you to learn if it is something you can counter, and decide if you want to counter it. You can also try to get permission. It has worked. People do get permission, so it is a viable option.

If you have made a good faith effort to understand and follow the rules, then go ahead and design. Don't let it bog you down. Infringement risk is part of the business.

 I'll just put the design up and see what happens

There is generally no legal requirement that you get a warning before being sued. Many of the legal concepts have enhanced damages for intentional infringement. Showing intentional infringement might possibly be enhanced by showing a history of infringement - so use reasonable caution. If you make the POD play "Wack-A-Mole" on the "I'll do it until I'm caught" theory you'll have shopkeepers biting your ankles as well. Most shop keepers would rather the POD put money into development than legal fees.

 

But my use is "fair use" so why can't I do it?

See above. Just because it is legal doesn't mean you can do it. It is a business decision. There is a lot of information out that that makes it seem more simple than it is. Parody is protected, right? Yes ... BUT ... first you have to (a) make sure you have created parody and (b) make sure that a court will agree with you. There are numerous discussions in the legal venues as to what is parody but this case is sufficient to show the issues: DR. SEUSS ENTERPRISES LP V PENGUIN BOOKS USA INC.

What to do if your design gets pulled

Get a clarification as to exactly what the infringement is. The typical message is rather vague. You should ask (1) who is the complainant (2) exactly what is the nature of the violation - is it the design, keywords, surrounding text, a combination of these (3) what is the nature of the violation? copyright, trademark, policy? You can't assess the validity of the complaint until you get more information. If you really think you are right write back explaining why. The worst that will happen is getting a response that says you are wrong and you won't be any worse off than you were.