Please Stand Clear of the Closing Rights

I’ve reported twice on my experience selling things on Zazzle, the custom on-demand online print service for apparel and paper goods. First, just over a year ago, I mentioned the t-shirt designs I had made to riff on the Disney World monorail announcer notice, “Por favor manténgase alejado de las puertas.”

Second, a few months ago, I reported that Zazzle had pulled the pink, castle variety of the shirt, citing an absurd and indefensible intellectual property infringement:

The Disney castle concept is the protected intellectual property of Disney Inc. and may not be used on Zazzle products without permission, regardless of who the original artist or photographer may be.

I decided to make a workaround, removing the castle from that design:

Shortly thereafter, the Tactical IP blog weighed in on the issue, noting that Zazzle’s statement was “legally incorrect.” Here’s their clarification:

Disney may have several registered copyrights in various depictions of a castle. They more than likely have multiple trademark registrations that include a castle design. They may even own the copyright in the architectural plans that were used to construct the castles that appear in their theme parks. But no one owns the concept of a castle. It is free for all the world to use.

It doesn’t matter much, since in early December Zazzle pulled all my designs from their site. They sent a similar IP infringement notice, this time simply stating that my designs “infringe upon The Walt Disney Company’s intellectual property.”

I wrote numerous times demanding that Zazzle specify the particular IP for which infringement was claimed. They responded each time with exactly the same notice as the first. My attempts to contact them by phone or any other means failed utterly.

What could their gripe possibly be? I can only speculate. Perhaps Disney has the idea that they own the very sentence “Por favor manténgase alejado de las puertas,” or its equivalent. Perhaps they think they own the concept of the monorail. Both of these claims would be as absurd as the one about the castle. Furthermore, one can find dozens of products with monorails and “Por favor manténgase alejado de las puertas” on Zazzle which have not been pulled for IP infringement. Most of them are awful designs, so perhaps my offense involved creating a design appealing enough that people actually bought it.

The whole process is infuriating, but what makes it moreso is the fact that Zazzle is technically within their rights. Here’s the key passage from their user agreement:

Zazzle and its designees shall have the right to remove any Content that violates the Agreement or is otherwise objectionable to Zazzle.

In other words, Zazzle can remove anything from their site for any reason whatsoever, including caprice. As attorney Paul Godfread notes in a comment on the Technical IP post, when a company like Zazzle gets a complaint from Disney, it’s always in their best interest to avoid confrontation. But, as Godfread also adds, “I have a real concern that websites in general (not just Zazzle) are helping to shut down what would otherwise be legitimate expression.”

What’s fascinating about experiences like mine is that they represent a sort of anti-collusion. Disney and Zazzle clearly aren’t in cahoots, nor does the latter feel legally threatened overall. If that were the case, Zazzle would take down potentially infringing materials much more aggressively, including edge cases that probably wouldn’t draw infringement complaints. By playing the ignorance card, Zazzle takes advantage of so-called long tail economics, eking out large numbers of tiny profits on products about whose content they can claim ignorance.

What can one do in response? Not much. One can—and should, by my estimation—cease to patronize Zazzle as a customer or a designer. But, it’s unclear if Zazzle’s competitors have better policies, on paper or in practice. From a legal perspective (although I am not an attorney), I do wonder if there is some potential class action lawsuit that might emerge around internet content sites that knowingly rubberstamp illegitimate DCMA notices.