Understanding Compliance with Content Usage Policy

If I see it in the marketplace it must be OK.
My image does not infringe on anyone's rights!.
I got my design pulled but I know it is legal.
My design got removed but another one was allowed to stay.
Only one of my designs got pulled, others just like it were allowed to stay.
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?
I don't want to get into trouble, but it seems impossible.
I'll just put the design up and see what happens.
But my use is "fair use" so why can't I do it?
What to do if your design gets pulled.

 If I see it in the marketplace 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. In some cases the screening policies have changed. Older designs may have had a different screening policy and, again, designs that do not meet current standards have not been caught yet.

 My image does not infringe on anyone's rights!

Your image might not be infringing. Text that you use to sell the image or product could be the source of the problem. If you create an association in the viewer's mind between what you are selling and protected intellectual property you are at risk for infringemen. That doesn't mean you HAVE infringed. It means you have entered the zone where your products get pulled because the POD does not want to spend money defending your choice of marketing the design. Use of trademarks or identifying personal information in tags, titles, description and marketing text is a very common reason products are pulled.

 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. You can, however, request reconsideration.

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. It could violate rules of publicity, privacy or trademark. 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 evaluated differently from parody. 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.

Don't automatically blame the rights holder for the removal of your particular product. They might be to blame, but often they have no clue your particular product exists. Do not assume that just because the POD said that such and such company demanded removal that the company actually did that. It is quite possible that the company, or its lawyers, have never seen your design or anything about it.

Typically the rights holder tells the POD to remove all infringing products. They don't tell the POD how to accomplish that. The POD then chooses what is fast and inexpensive, not necessarily what is accurate. It is far cheaper to simply remove all products with certain words than it would be to read the title, read the description, read all the tags, then look closely at the design to see if it is referencing a product. One can be done by a computer program, the other requires many people - and not at the bottom of the list of pay since they have to have the reading skills to understand what they see. From the view of avoiding legal risk the POD would rather be over inclusive than underinclusive.

If the POD tells you that your design infringes it isn't necessarily true. It could be true, based on the considerations above, but it also might be that the POD simply is making a decision not to argue the point. They won't tell you that. They will tell you they are removing it for infringement. If you disagree and believe the removal was not reasonable then you need to take your own action.

No one is going to invest time, money and effort in defending your design if you don't believe it is worth your time, money or effort. What can you do? Get educated on copyright, trademark, and other similar rights. By getting educated I do NOT mean going to a free forum and asking questions of people whose credentials are unknown to you. Go the library and get some books on these subjects - Nolo press writes such books intended for non-lawyers. If you "must" use websites make sure it is one written by licensed attorney's specializing in intellectual property law. There are forums that promise expert legal advice. I don't know if there are good ones that live up to that claim. I do know that there are bad ones where the contributors are often quite wrong.

Make sure you have some credible reasoning why your use does not infringe . "It is a common saying" is not a credible reason. "Neither the image itself nor any of the surrounding circumstances in any way suggest a reference to a specific brand or manfucturer, much less YOUR brand. There is nothing in the presentation that legally impairs your mark, creates confusion or dilutes the strength of your mark." MIGHT be credible reasoning -- if it is accurate. Of course in order to make such a statement you will have to have educated yourself on what all that means. Having educated yourself on how to counter unfair claims (books, or in a pinch credible web sites) you may find you need more help. For that you turn to the organizations that fight overbearing claims. See what to do if your design gets pulled.

 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.

Only one of my products got pulled, others with the exact same design were allowed to stay.

This is a tricky one. Did the POD actually miss the others? Or did they decide to remove only the design specifically identified by the complainant. Perhaps there is something different in the titles or descriptions that created a different legal assessment. It could even, possibly, be the fault of an affiliate. Let's say, for example, that you created a design intended to be a "fan" design but that you carefully avoid any mention of the famous show or event, and the design itself is generic enough to stand on its own. An affiliate recognizes that the design would appeal to fans of that show or event and puts it on a promotional page surrounded with text that enhances and highlights the connection. The owner of the intellectual property will identify the design and the POD will pull it.

The dilemma is that there is often a big difference in damages between intentional and unintentional infringement. So if the design really does legally infringe it is a big risk to leave it up once you have notice of infringement. On the other hand it is possible that there isn't a real infringement and the POD removed only what was identified to step out of the legal line of fire. So take down the others, or make a decision to accept the risks of leaving the others up. It isn't a decision that can be made generically.

 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 judgment. 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 infringement. 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. You can also seek help, or get involved in organizations that represent your interests.

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.

Sometimes people think "comedians have carte blanche" and don't have to seek permission or pay fees to use the names of famous people or trademarks in jokes and skits. Actually comedians don't have carte blanche and they very often do have to receive permission and pay to make those references. Comedians usually have legal staff to try to get clearances when they can, and to defend them against law suits when they decided to proceed without clearances. Many parodies are done with permission. It is simply legally safer and cheaper.

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 source of the violation - is it the design, keywords, surrounding text, a combination of these (3) what is the nature of the violation? copyright, trademark, rights of publicity/privacy or other content policy (4) how was your design identified as possibly infringing - did they view the actual image, use a keyword search, or accept a specific identification of the complaining party (5) did the complaining party specifically name your product or design or was their demand more generic? 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.

If you really don't know the basis of the complaint, then you are fighting with a marshmallow. You have to make the complaining party spell out exactly what they are claiming. At that point you have a chance to say "But my design does not infringe and here is why." I would not threaten reverse action such as for tortious interference with prospective economic advantage unless I had the legal advice to say that was a credible threat. However it is something one should know about and research. The end goal is for the other party to confirm that they never meant or intended to include your design in the sweep. This is naturally easier if the POD included your design because they were looking for an easy and cheap way of catching infringers, and not because the original complaining party specifically identified it.

Mistakes happen, and very often the POD will do mass removals based on key words without ever looking at the actual item. In many cases those items will be restored or permission to repost granted if you can show that your particular use or item was not in violation. If, however, the situation is a legal judgment call don't expect the POD to back down. The point of removal is to get out of the line of fire of the legal issues.

Your chances of successful reconsideration are better with a generic complaint "Remove all products with our trademark" than with a specific complaint "Remove product Id 1234567". Sometimes, however, the complainant also generates their list of removals based on keyword without actually looking at the design. This would be risky for the complainant except that the financial realities of law suits and recovery mean that they rarely get challenged for the behavior. (See the article on Having Your Say)

The first step in learning how to make a good case that a design is not infringing is to learn the basics of copyright and trademark. For example, to argue that something is not a trademark infringement it is important to know the difference between a strong mark, and a weak mark. You have to know what a "famous mark" is to explain when something is not a famous mark and is thus not entitled to the same level of protection. If you are going to argue "fair use" you will need to know the "elements" of "fair use" and understand that fair use is a defense to infringement. A claim of "fair use" is "OK, maybe I infringed but I did it in an allowed way." Can you explain why your design is parody and not satire? Do you know why it makes a difference? If not, then don't argue that your design is allowed as parody. Patents, Copyright & Art Information at NOLO.com Do-It-Yourself Legal Books, Forms and Software From a Trusted Source

As far as I can tell most people who argue and are clearly not infringing get an "oops" you can put it back response. People in the grey area are told to work it out with the rights holder. Again those people who can sort out why they are not infringing (or pay someone to sort it out for them) can often get the rights holder to agree that that particular use is not infringing.

Bottom line - don't try to get around the rules, but don't fret if you get caught up in something unintentionally. If you design, it WILL happen. It is the nature of the business.

There are organizations that will help with certain kinds of claims. They probably aren't going to be interested if you are trying to use technicalities to make money off a TV show, but if it is a Government agency or large corporation squashing free speech there are resources. The thing is, that if people aren't supporting these organizations will they be there when you need them?