Copyright

Copyright infringement is a high-benefit, low-risk business model

An increasing number of print-on-demand sites, such as Zazzle and Café Press, are popping up on the Internet. Users can create customizable products featuring their own photos or other graphic designs.  Unfortunately, there is very little stopping some of these users from creating products with stolen copyrighted designs and other art, with the copyright holder never even knowing that their work is being infringed.  While these sites don’t condone copyright infringement, the business model does benefit from infringing material without much risk of being sued.

First, let’s look at how print-on-demand sites operate.  These companies provide hundreds of products that can be customized by imprinting user designs, from t-shirts and hats to and mugs and dinnerware. Users upload their designs and then purchase products.  The companies produce, packages and deliver those products to the user, usually within a few days. Most sites also allow users to also create stores where they can sell those products to other customers, allowing for millions of products across thousands of stores.

Unfortunately, there is very little that prevents users from creating products using someone else’s work.  A few of these sites have screening methods but they are designed to tackle only the most egregious infringements, such as Mickey Mouse.  Café Press, for example, pushes out a series of copyright warnings with legal explanations that helping users determine if what they are uploading is infringing. Items with known brands, such as a Superman “S”, Café press will require proof of license before releasing the item, or allowing it to be posted in a user store.  But for relatively unknown works, user are free to ignore the warnings. No proof of ownership is required.

Why don’t these sites take a more active role to limit infringement? Because their is little risk that they will be held accountable.

First, it is very hard to find infringing material on these sites.  They are not indexed by Google so won’t show up in a Google image search.  Most often, copyright holders only discover infringements accidentally, or through friends or colleagues who recognize their work. Given the vast amount of material on these sites, it is like finding a needle in a haystack. The result is that the vast majority of copyright infringement goes unnoticed.

Unfortunately, there is very little that prevents users from creating products using someone else’s work.

Second, these sites hide behind a misinterpretation of the Digital Millennium Copyright Act (DMCA).  The DMCA provides a “safe harbor,” for sites that host user uploaded material, and provide specified “takedown” procedures for infringing materials.  However, the safe harbor only applies to companies that merely host uploaded materials and do not participate in their manufacture or promotion. While sites like Café Press and Zazzle do provide and adhere to takedown procedure requirements, they are also manufacturers of the products.  Several recent court cases, while not definitive, strongly suggest that print-on-demand companies are not entitled to the safe harbor. But the general public, and even most lawyers, are not aware of those cases, so don’t question company claims that they are immune to copyright lawsuits due to the DMCA safe harbor.

Finally, money a user may receive from a lawsuit is often less than potential legal fees required to sue.  Copyright holders who win and infringement lawsuit are entitled to the profits generated by the infringing work. The problem is that these individual items don’t sell much and the markups aren’t very high.  These companies make their money based on volume across hundreds of thousands of designs.  So the potential awards for an infringing design may not be enough to cover the legal fees required for the lawsuit.

All is not lost however.  There are some tactics that copyright holders can institute to provide some relief.  First, copyright holders can use a digital watermark on their work.  Digital watermarks, such as those provided by Digimarc, apply an invisible layer on top of your images that holds various types of metadata. This layer cannot be removed from the image, and can be read by software regardless of where the image resides; whether on the web, in a magazine or on a mug.  On the Internet, that watermark can be used to track the image, alerting users to infringement. A takedown notice can then be sent for any discovered infringement.  (see this article for how to send a takedown notice).

Digimarc Digital Watermaking

The second tactic is to register your work with the Copyright Office.  Although a copyright is automatic at the time of creation, registration allows the copyright holder to receive 750- $30,000 per infringement, and the infringer is responsible for the copyright holders legal fees.  So let’s say that a site is discovered that is selling 25 products with your work.   Only 10 of each are sold at $3 profit.  That is only $750 in profit and you have to pay the attorney.  With statutory awards, even if the court only allowed $1000 per infringement, the copyright holder will receive $25,000, and the legal fees paid by the infringer. Since registration with the Copyright Office is only $35, it is a good deal.

These tactics are not preventative; they only help after an infringement occurs. Yet, if more people implemented them, we might see pressure on these companies to change their procedures to be more active in preventing infringements. 

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

2 Comments

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  • There is a opposite side to this and here it is. I have lost thousands of designs that they made money off and I am allowed by Public Domain and written documentation to use. Where are my rights? Lawyers need to start counter suing.

    I have permission from Alcoholics Anonymous World Services to use the steps and traditions on posters even with then name A.A. in the text as long as I do not say its reprinted from them. It is in the Public Domain two first editions therefore available to use but with a disclaimer which is not mandated but respectful which I do.

    Zazzle took down 8 years of my work because they said the Logo and name A.A. was copyrighted. Yes they are but my step posters were done correctly. Even after submitting a email from Central Office Legal Department that I can use these, they keep taking down my work and have ruined my business. They refuse to explain how they justify it, just keep taking more and more that say 12 steps which are over 200 programs in the world with those first words.

    Obviously they deem who and what can be used and it was fine until now and after I had some confrontations at their forum with the moderators over things like this, they hit me hard and there are still over 3,000 products from other artists using the A.A. logo and word Alcoholics Anonymous in front of their products and in tags. I reported these for 2 months and they still allow them to use them

    I do not have the money for a attorney or know where to contact the owners a well kept secret at Zazzle for obvious reasons. But this is discrimination at its best after I have made them over a quarter of a million dollars in sales they have done this to us.

    Yes they are selective and more. Lots of stuff that needs looking into that I cannot post here, but something is very wrong.

  • Steve’s article is refreshing in that he is both a fine artist in his own right; as well as an attorney. He is not just in the business of taking from artists. But rather, he is supportive of–the artist. He has a dog in the infringment fight. He is able to understand as well as advise, the creative artist in all of us. An honorable quality, especially in this millenial age of “thieves”.

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