About a month ago, scribd.com informed me that they had removed the sample chapter of Goblin Quest I had posted because it violated the rights of the copyright holder. As the copyright holder, I found that odd. It’s possible my publisher sent a takedown notice, thinking it was a copy of the entire book instead of just one chapter. Or it might be a flawed program that recognized textual similarities between the sample and the full book and flagged it automatically. I decided to let it go, because I didn’t have the time or energy to worry about it.
This week, Zazzle.com e-mailed to let me know that the image on my Muse T-shirt violated the rights of the intellectual property owner.
That would be this image, which I created in April of 2011?
Call me goofy, but I figured that having created the image, I was the intellectual property owner. I wrote to them, asking for clarification. They responded promptly, and I give them points for that. Points which I promptly take away again for their response, in which they explain my shirt was removed:
…because it featured a design that does not meet Zazzle’s Acceptable Content Guidelines. Specifically, your product contained a trademark-protected text “Muse”, United States Patent and Trademark Office serial number 75773735.
Zazzle has been contacted by legal representatives from Maggy London International, Ltd., and at their request, to removed designs that may infringe upon their rights from the Zazzle Marketplace.
That would be this trademark record, which I presume was registered as part of Maggy London’s Muse division, which sells things like this:
At first I could almost understand. The product was listed as “Muse T-shirt,” which could conceivably be taken as suggesting this was from the Muse brand of clothing. But Zazzle’s response stated it was removed because the design violated someone else’s trademark. In other words, they’re claiming I’m not allowed to use the word “Muse” in a stick figure comic shirt.
I believe my response is best expressed in animated gif form.
Look, I get it. I make a significant part of my living as a writer. I appreciate that copyright law helps me to do that. If someone decides to make a Goblin Quest movie without my permission, I like that I can open up a can of legal whoopass on them.
I get that the internet complicates things. Like pretty much every other author out there, I’ve seen my books go up on various pirate sites. Trying to find a way to protect copyright holders’ interests without stomping all over internet freedom is complicated. Make it supereasy to demand a website take down your stuff, and you’ll probably create a system that’s easy to abuse. Make it too hard and convoluted, and you protect copyright infringement at the expense of the rights holders. And remember that copyright law varies from one country to the next…
But what we have right now? It’s a bit of a mess.
- As a writer, even if I wanted to send DMCA takedown notices to every infringing site, it’s impossible. There aren’t that many hours in the day.
- At the same time, as a content creator, I get to see my work yanked down from websites on the flimsiest of claims by anyone who can afford a lawyer to send out random cease & desist notices, shotgun style. I could almost certainly fight this … but once again, it requires time and a lot of hoop-jumping.
I don’t have that kind of time, people! I’m far too busy writing blog posts and searching for animated Naked Gun gifs![1. Which I think qualifies as fair use/derivative work, but I’m not sure. Like I said, it’s messy.]
I don’t have a solution. I’m not that smart. I just feel like copyright should be something that helps content creators instead of hurting them.
The Octopus Gallery
June 7, 2012 @ 9:59 am
I’ve worked with Zazzle for a number of years and they are *super* twitchy sometimes about pulling things down with certain keywords. Sellers forums have whole lists of words you can’t use even for things completely unrelated to a trademark because they’ll get pulled, as you’ve experienced. It’s incredibly frustrating.
June 7, 2012 @ 10:00 am
Am I to understand that the word “Muse” is trademarked and we’re not supposed to use it? It’s only how many years old? A few thousand, perhaps? Isn’t that public domain now?
June 7, 2012 @ 10:21 am
(not a lawyer; could easily be talking out my ass here)
It’s my experience that many times when such facepalmy copyright defense actions are taken it’s not to specifically shut down that one infringing item. It’s to build a volume of paperwork to support a company’s general defense.
I believe that part of maintaining a trademark is that you actively defend against its dilution in the public arena.
As for trademarking ‘muse’…I’m pretty sure that can only be done within a specific (somewhat) limited context (clothing–maybe fashion–for this instance). Buffalo Wild Wings has trademarked, among other things, Mild, Medium, Hot, and Teriyaki. I sure hope that’s only in the buffalo wing space.
Stephen A. Watkins
June 7, 2012 @ 10:38 am
Obviously, it goes without saying, IANAL… but it’s been my understanding that copyrights and trademarks over common words (such as “muse”) are virtually unenforceable, from a legal stand. And yeah, trademarks in general have to be limited to certain specific contexts. (It is this latter, for instance, which gave rise to the battle between Apple and Apple – i.e. Apple Computers and The Beatles – when the former moved into selling music; and yet, as you will note, Apple iTunes is still alive and well). But yeah, unfortunately, the way it works In The Real World is those folks with money basically get to make up their own laws/enforceability because they can afford to wait you out in court, even if in a real court battle things wouldn’t go their way, because they know you can’t afford a real court battle.
Jim C. Hines
June 7, 2012 @ 11:35 am
I’m sorry, I need to delete your comment because I’ve trademarked the question mark.
Andrew A. Anissi
June 7, 2012 @ 3:05 pm
I think it’s pretty obvious that your stick drawing is using “Muse” as copy, and not as a trademark. Also, there’s no likelihood of confusion based on your use of the term that would make people think the source is that fashion company.
The websites like Zazzle and Scribd are clearly misreading IP laws, but they’re under pressure from large companies to err on the side of over-enforcement, which, as you have proven, has a clear chilling effect on speech.
If you have time, maybe appeal to a group like EFF to help pay for your civil claims and get a Court to stop websites from doing things like this.
June 7, 2012 @ 10:20 pm
This is the sort of thing that makes the public less inclined to observe copyright/trademark laws.
Maybe Maggie, our cat, should go after this Maggy London.
June 11, 2012 @ 7:56 pm
I had something similar happen with an image I used on my blog. I had an artist contact me saying part of the image (the dog’s head) was infringing on her copy right of her artist representation of a breed of dog and threatened me w/ a take down notice. I thought the whole thing was really ridiculous because in her comparison link, I saw enough differences between the two. I took the image down because, like you, I didn’t want to waste time arguing with something I thought was ridiculous and possibly not even applicable (hubby looked up fair usage when I showed him.)
June 14, 2012 @ 6:39 am
I am Jon from Muse Apparel, Division of Maggy London.
This came about as a result of our discovery of the website at http://www.zazzle.ca/the+shy+muse+clothing.
We wrote to Zazzle and brought this webpage to their attention and they wrote back asking if we wanted all clothing with the Muse mark removed from their site. We responded that we had located numerous items on their site that showed “Muse” as a trademark on clothing (t-shirts, etc.) under the heading “Muse clothing and apparel” and reiterated that they stop selling these items.
Apparently they have started to enforce this and may be being overzealous for fear of being sued, but the issue raised here is not something that Maggy London asked for. We never singled out your t-shirt, and have no issues with it.
We would never take the position that the shirt is an infringement just because it has a drawing that includes the word “muse” as part of a sentence. Zazzle failed to make clear that the issue was not the content, but rather that the shirt was listed as a “Muse T-shirt” which is clearly a problem from a branding perspective. While we asked Zazzle to help us police our Muse trademark, we have no control over what items they select to take down.
Sorry for the trouble.
Please contact me if you’d like to discuss further.