A tale of Copyright Confusion, Fair Use, and "zazzled" nerves — Part One

Envy springs forth from the pious song of man — censored version

Take a look at the photo above. Notice anything unusual? Ha! Rhetorical question! It would appear that this version of my original photo, Envy springs forth from the pious song of man, has undergone the careful hand of a surgeon’s scalpel, carving out objects and replacing them with big fat copyright signs. And that’s pretty much exactly what I’ve done, though using photo editing software to perform this digital photoectomy, as opposed to the gleaming blade of a surgical tool.

Envy springs forth from the pious song of man

So why, exactly, would I decide to censor my own work? Well, in the opinion of the print-on-demand service Zazzle, I don’t have the right to sell products containing my original copyrighted photo (seen to the right) on their website. This photo, along with nine other images, was rejected by Zazzle’s content review team as being “in conflict with one or more of our acceptable content guidelines.”

Huh?

We’ll get to the whole sordid tale in a moment, but first allow me to shamelessly plug my brand new Zazzle shop featuring exclusive censored versions of my work on mugs, tote bags and t-shirts, while simultaneously bringing attention to an area of copyright law Zazzle seems to ignore: Fair Use. Want to make a statement when attending the next opening reception at your favorite gallery? May we suggest the “I support FAIR USE and the Copyright Act of 1976″ shirt. Or perhaps you’d prefer the classy and stylish “©ensored” tee? Take your pick! Choose your favorite colors, shirt style, and exclusive censored versions of the 10 photos that Zazzle has deemed as unacceptable and you’re good to go!

And now… the rest of the story.

Visions of Retail Glory dance in my head

Each of the past couple of years I’ve released new products around the holidays: a set of collector postcards in 2010, and a deluxe box set of my iPad book in 2011. For 2012 my product plans were far more ambitious, envisioning a veritable gift shop full of Wind-up Dreams & Vinyl Nightmares merchandise. After researching a variety of print-on-demand services, I selected Zazzle, impressed with their wide range of products, their reputation for high quality printing, and the ease with which artists like myself are able to setup storefronts and sell custom products to the 25 million or so people who visit the site each month. Moreover, I was extremely impressed with their hand-sewn laptop bags and sleeves manufactured by Rickshaw Bagworks in San Francisco. These bags are COOL, providing artists the opportunity to use their creativity to layout seam-to-seam, all-over designs, and make these product available for sale on the Zazzle website. Awesome!!

Setting up the Wind-up Dreams & Vinyl Nightmares store

With dozens of my photos to choose from, I began to design products, carefully scaling and laying out images using Zazzle’s helpful templates and online design tools. I made mugs, mouse pads, iPhone cases, laptop sleeves, notebooks, day planners, coin purses, cosmetic bags… even cool little desktop speakers manufactured by OrigAudio. After three or four weeks I had 80 or 90 products waiting in my “virtual stockroom” while I setup my store and made plans to go live with a launch of exclusive merchandise just in time for the online holiday shopping season.

Stocking shelves and getting ready for the Grand Opening!

As you work on the design of a new Zazzle product—say, a mug—it resides in a queue of In-Progress Designs, which is kind of like a little workshop where you can tweak and modify the images and text you want printed until it’s ready for prime time. Once you’re done, you can add it to your shopping cart, submit payment, and your custom printed mug will be shipped directly to you—personalized service with the click of a button.

Custom printing is one way of using Zazzle. Another is setting up a shop and offering your custom designs for sale in Zazzle’s online marketplace. Zazzle does the printing and the shipping, and you as the artist get a royalty (which you set) on each sale. With several dozen product designs now complete, I was ready to begin moving my work from In-Progress to my online Zazzle store (which had been created as “private” until I was ready for launch). The Zazzle mechanism for moving a product into a shop is to click “Post for sale.” There, you give your product a title, write up a description, specify a variety of options, establish your royalty, and add all-important search tags to catch the electronic eye of search engines. All very easy! At the bottom of the page is the following checkbox:

Yes, indeed, I indicated that I do have the right to publish and sell products designed using my photographs, and I didn’t see any reason why I would not agree with Zazzle’s user agreement.

Once posted it may take up to 24 hours for an item to appear in your shop, but the process actually runs much more quickly than that (maybe an hour or two) and Zazzle sends a nice email notifying when the process has completed. Though the “doors” were still closed, I was very excited to begin seeing all of my designs popping up in my little Wind-up Dreams shop!

Then… trouble began.

Sorry, you did not build that!

I posted my initial batch of products for sale on Tuesday and Wednesday, September 25th and 26th. The first sign of trouble began that Friday, September 28, with an email from Zazzle’s Content Review Team that read, in part:

Unfortunately, it appears that your product, Backstage Pass Mug, contains content that is in conflict with one or more of our acceptable content guidelines.

We will be removing this product from the Zazzle Marketplace shortly.

Policy Notes: Your design contains and (sic) image or text that may be in violation of an individual’s rights of celebrity/publicity. This may be due to the actual design of the product, description or search tags that are associated to your product. Please feel free to submit a new design to our Marketplace from original elements.

Backstage pass in the ninth circle of Hell

I was a bit puzzled. The mug I had designed featured the photo to the right, Backstage pass in the ninth circle of Hell, which I staged and photographed in my studio in the fall of 2008. The photo is a commentary on fame, selling out, and the potential consequences of getting what one seeks (e.g. money, fame, access). The piece has appeared in gallery shows, is sold online as a limited edition print, and is included in my book and postcard set.

No sooner had I read this first email that two more arrived—one denying my attempt to place Backstage Pass on a MacBook sleeve, the other restricting the same image on the face of a desktop speaker. Sure enough, upon clicking over to my as-of-yet-unopened Zazzle shop, all three products had been deleted. They hadn’t been moved, as I would have expected, to the In-Progress area of my account where I might be able to figure out what had happened. They were just gone. Poof.

Confused, I wrote to Zazzle requesting more specific information about why my photo had been rejected, and later in the day received a canned, condescendingly apologetic explanation that read in part :

We would love to offer every design that our users submit, however we must abide by all applicable laws and standards as well as our own content guidelines and copyright policies.

Unfortunately, it appears that your products did not meet Zazzle’s Acceptable Content Guidelines. Specifically, your products contained content which infringed upon the intellectual property rights of Elvis Presley Enterprises.

We have been contacted by Elvis Presley Enterprises, and at their request, have removed the product from the Zazzle Marketplace.

Elvis matchbooks in the staging of my photo

I certainly could not deny that the image of Elvis is, in fact, included in my photograph. There he is on three matchbook covers observing the scene backstage with detached reserve and dissatisfaction (essential to the social commentary intended by the piece).

Putting aside, for a moment, Zazzle’s claim that they had been “…contacted by Elvis Presley Enterprises” requesting that my mug design be removed, my concern was with this statement:

 …we must abide by all applicable laws and standards
as well as our own content guidelines and copyright policies

Well, in accordance to “all applicable laws and standards,” my photo is completely legal!

How can I be sure of this and what does it mean when it comes to posting images on the web? Tune in tomorrow to read the rest of the story. If you are an artist, a supporter of the arts, or just someone who likes reading unsual legal cases about celebrities (I know you’re out there!), I promise you will not be disappointed.

Thanks for reading!

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