Does Zazzle selectively enforce its own copyright infringement policies?

April 15th, 2010

OVERVIEW

“Content from Back to the Future is the protected intellectual property of Universal Pictures and may not be used on Zazzle products without their permission.”

That is the broad, encompassing reason provided by Zazzle, as to why they removed a specific “NOV 5 1955” t-shirt design from their marketplace, six months after it was uploaded.

Meanwhile, dozens of unlicensed designs that can be easily construed as “content from Back to the Future” remained live and for sale in Zazzle’s marketplace (and some still do), and in fact, some are actually handpicked and promoted by Zazzle.

This site (ZazzWipe!) seriously questions what seems to be Zazzle’s practice of selectively enforcing their own copyright infringement policies. That is, we make the case as to why we’re suspicious that Zazzle is deleting some designs for copyright violations, while it knowingly and intentionally keeps other designs live that are committing the identical or very similar infractions.

Before continuing on to the case details sections below, some important points:

1. We won’t be explaining in detail who Zazzle is, what they do, etc. There’s an assumption here that if you’re on this site, you understand what Zazzle does and the concept of POD retailing. You may have even found this page by Googling the terms, “Zazzle Copyright Infringement,” “Zazzle deleted my products,” or similar.

2. As clearly noted in this site’s header graphic, this site is NOT part of Zazzle, or officially connected to Zazzle in any way. It is a site specifically established to question if Zazzle is selectively enforcing their own copyright infringement policies.

3. We actually have no problem with and totally understand Zazzle’s removal of any design that is identified as a copyright infringement. Our issue is that Zazzle is inconsistent (and quite possibly, intentionally inconsistent) in doing do, resulting in an unfairly uneven “playing field.”

4. We assure you, this site is not run by any of Zazzle’s competitors, such as Café Press.

5. We do understand the initial “knee-jerk reaction” that some of you might have — especially Zazzle loyalists — that there is absolutely no way Zazzle could be selectively enforcing their own copyright infringement policies. However, we ask you to take a step back, and consider: Is it even possible that this is the case? If you firmly believe it’s 100% impossible, then this site is not for you. If you believe, “You know, it’s unlikely, but may be possible,” all the way to, “I definitely think they could be doing that,” then read on…

CASE DETAILS, Part I – Zazzle loves it…

In the spring of 2008, we uploaded the NOV 5 1955 design (pictured right) to Zazzle’s marketplace. This design is clearly from Back to the Future, as it partially represents the dashboard time display readouts, within Doc Brown’s DeLorean time machine. (November 5th, 1955 is the date to which Marty McFly travels back to.)

When we uploaded it, we did think it abstracted enough from the movie to avoid infringement. At the time, there were (and still are) MANY hugely successful online stores — standalone non-POD stores as well as stores hosted on Zazzle — that offer hundreds of pop-culture designs, that are not officially licensed by the respective studios. We followed the example of those stores of how to play it safe enough; of what kind of content falls into the gray area that the studios seemed to be okay with.

The day after we uploaded our NOV 5 1955 design, Zazzle gave it one of their “Today’s Best Awards,” commonly referred to as “TBAs.” It was even featured for the day in their (then) rotating mix of designs on Zazzle’s front page. The day after, it then took its normal place in the marketplace with all other designs, which is of course fine.

Our NOV 5 1955 design sold five to ten t-shirts over the course of about six months. That is also fine, so far no issue.

CASE DETAILS, Part II – Zazzle wipes it…

In the fall of 2008, we were notified by Zazzle that our NOV 5 1955 design was being removed by them for being a copyright violation, initially without specifics.

As you probably know, the Zazzle marketplace is filled with millions of designs, and it’s very difficult for them to police everything. Therefore, Zazzle is reliant on its own members to report designs which are believed to be copyright violations. Every product page on Zazzle includes a “Report Violation” link, that launches a dialog box for the reporter to make their case as to why the design is a violation. It then goes to Zazzle’s content review department, for consideration.

Because of the nature of this process, it was reasonable for us to ask for more specifics regarding the reporting of our design as a violation. After all, it was within the realm of possibility that whomever reported it, was someone else who also had Back to the Future inspired designs on Zazzle, and was trying to eliminate his or her competition via dirty tactics.

We did not receive an answer to that, but after some email back-and-forth to try and clarify, Zazzle provided the blanket explanation (in writing) that, “Content from Back To The Future is the protected intellectual property of Universal Pictures and may not be used on Zazzle products without their permission.”

We then logically questioned if that was the policy, then why hadn’t the design been killed from the very beginning? It’d clearly been viewed by Zazzle staff immediately after upload six months earlier, for them to handpick it for a Today’s Best Award and be featured on their own front page.

We did not receive an answer to that either, but was okay with it, as we speculated that when the NOV 5 1955 design was originally uploaded, Universal wasn’t yet on Zazzle’s case…but sometime thereafter they were, and Zazzle had now removed our design as a result.

Let us again iterate: We have absolutely no problem with Zazzle removing designs for copyright violations, and totally understand it. As long as the violation is clearly stated, and it is consistently enforced, across the board. “Content from Back To The Future is the protected intellectual property of Universal Pictures and may not be used on Zazzle products without their permission,” is a straightforward blanket policy. Our design was in clear violation of it, and was understandably removed by Zazzle to comply.

CASE DETAILS, Part III – Flux You!

However, when we subsequently did a simple Zazzle search for “Back to the Future” it yielded dozens of designs that — for those who are familiar with the movie — would be easily construed as “content from Back to the Future.” Including arguably the most recognizable content from the movie, the Flux Capacitor. Among the Back to the Future designs found…Regarding the Flux Capacitor, there were several unlicensed designs and dozens of products featuring it, in various representations. A simple question: Is the Flux Capacitor “content from Back to the Future?” Absolutely.

Upon easily finding the above designs with a simple Zazzle search, we emailed Zazzle’s Content Review department to the tune of, “Well, what about these designs…they’re not content from Back to the Future?” We provided specific links to those products pages for Zazzle to review…

…however, Zazzle instructed us to go through the official process, and report the designs one-by-one, utilizing their “Report Violation” dialogue box on each individual design page.

And that’s exactly what we did; not to be jerks, but in an attempt to create a level playing field. We actually would love for everyone to do well with their designs, however, these other stores were retaining their opportunity to offer Back to the Future inspired products, while we weren’t. We were just looking for equal treatment here.

So, using Zazzle’s exact “Content from…” wording, we reported designs / products that were clearly Back to the Future inspired.

Most to all remained lived. We gave it some time, then reported them again. Still, they stayed up, and remained available for sale in Zazzle’s marketplace. For the time, we let it go…

CASE DETAILS, Part IV – We’ve been Copper Blocked!

But then sometime later we were notified that another one of our designs, our Goonies inspired, “Chester Copperpot Spelunking Challenge” (pictured right) was being deleted with the parallel, “Content from Goonies is the protected intellectual property of Warner Bros. and may not be used on Zazzle products without their permission.”

(Just to note: We’re not positive, but fairly certain we had uploaded our Chester Copperpot design before our NOV 5 1955 design was removed, so, at one point they were both live simultaneously.)

Yep, as we did with Back to the Future, we did a simple Zazzle search for “Goonies” and related searches such as “Sloth,” “Chunk,” “Truffle Shuffle,” etc. The search(es) easily yielded many unlicensed designs that were blatantly “Content from Goonies,” and some even used “Goonies” font. We reported those designs…they stayed live, and for sale in Zazzle’s marketplace.

CASE DETAILS, Part V – Open forum…

At this point, feeling ignored by Zazzle’s Content Review team, we decided to post on Zazzle’s public shopkeeper forum. The forum is a venue for Zazzle shopkeepers to discuss everything from marketing, new product suggestions, product improvements / criticisms, tech glitches, and yes, sometimes the issue of copyrights.

We posted a topic, “Zazzle, please be consistent!” which recounted the above (what you’ve read so far), a bit more concisely, and certainly it was done politely. We carefully made our case in the public forum, “What’s fair for one is fair for the rest.” Citing examples of the Back to the Future and Goonies designs that remained live, we made the constructive recommendation that whenever Zazzle removes a design for copyright violation, they then do a quick search for similar designs, and delete those as well. Thereby adequately maintaining a level playing field.

Our “Zazzle, please be consistent!” thread was generally well received by other Zazzle forum members, many of whom understood and agreed with our points and recommendation. We were discussing the issue reasonably and intelligently. As the thread got older and less active, it naturally sort of “went away” and was archived.

As far as we know, there was no action on Zazzle’s part to remove those designs (or restore ours) as a result of the thread.

CASE DETAILS, Part VI – Ejected!

Some time went by, and we basically just let the issue go.

But then later, we were looking at Zazzle’s front page for whatever reason, and took note of the prominent graphic link on Zazzle’s home “front” page, to their ’80s T-Shirts page. On the ’80s page, just two of the unlicensed designs handpicked by Zazzle..…that’s clearly content from Back to the Future and Goonies, unlicensed, being promoted by Zazzle.

We went back to our original “Zazzle, please be consistent!” forum thread, to post this new support for our case. This update resurrected the thread, putting it back on the first page of the forum topics list…

…and with a very alarming result: the Zazzle moderator deleted the entire thread. To us, this sent up a huge flag; we must have hit a nerve, and the unlicensed pop-culture designs on the ’80s T-Shirts page must be something that Zazzle doesn’t want attention brought to. At least, not in this way.

Suspicious that something was up, we attempted to re-post the thread (at least, our own commentary), and not only was it deleted again, but Zazzle disabled our ability to post on the forums at all.

While we anticipated Zazzle taking that step, we were astounded that they took it one step further, by blocking our IP address, so we couldn’t even view the forum. From our home computer, it comes up as a blank page. (However, there are lots of ways around that, and we’ve been able to view the forum, just fine.)

THAT is why we created this dedicated site (ZazzWipe!), to explore Zazzle’s “selective enforcement” practice; Zazzle has banned us from their forums, for stumbling upon an issue they are very concerned about us discussing. And that is why this site is constructed as a blog, so we have the ability to have a discussion via comments.

CASE DETAILS, Part VII – You know, that I know…

Though, before we went ahead and pulled this site together (ZazzWipe!), we gave Zazzle one last benefit of the doubt, and hunted down email addresses and phone numbers for the Zazzle staffers who work in their Content Review department. (Out of respect to them, we won’t make that contact information public.)

Recounting pretty much everything above, we sensed a nervousness on the other end of the phone about the issue. When we asked about specific designs, one staffer confirmed that they were unlicensed, and a different one — in a probable attempt to buy some time — told us, “We’ll investigate.”

What is there to investigate? If the designs are unlicensed, and they are in violation of your own policies, why not take them right down?

To Zazzle’s credit, they finally did delete some of the designs we brought to their attention, but only when we became aggressive with phone calls and emails…

…however, still some of those designs have remained live (and promoted) by Zazzle, so, after giving them months to remove them, we’ve gone ahead and posted ZazzWipe! As a venue to persuade Zazzle to consistently enforce their own copyright infringement policies.

SO, WHAT’S REALLY GOING ON HERE?

We’re going to write this concluding section as a psuedo FAQ / cross examination of our own case. Here we go…

Zazzle doesn’t know about these other designs, because as you said, there are millions of designs on Zazzle.

They know about them. They’ve been reported. Repeatedly. Additionally, how can they not know about the infringing designs that are promoted on their ’80s page? Zazzle selected those designs to be there.

Well, maybe your NOV 5 1955 design is more of a violation than those other designs, because it looks more realistic? And that made it worse?

Remember Zazzle’s broad, encompassing, “Content from Back to the Future is the protected intellectual property of Universal Pictures and may not be used on Zazzle products without their permission.”

All of those other Back to the Future inspired designs easily fall into that. (Oh, and just FYI, our NOV 5 1955 design was done with a combo of Adobe Illustrator and Photoshop.)

Maybe those other Back to the Future designs ARE officially licensed…?

Nope, as we mentioned, a Zazzle staffer confirmed they aren’t, and there are at least a couple of other giveaways 1) The designs aren’t available within say a Universal boutique within Zazzle, and 2) The designs don’t specifically say “Back to the Future,” on them anywhere even in small print, and a standard © Universal or “Licensed from” line isn’t to be found on those designs or noted anywhere.

Okay, but really, it wasn’t right for you to bring all this up on Zazzle’s forum.

We respectfully disagree. It’s absolutely fair to discuss and speculate on the forum, why some shopkeepers don’t have the opportunity to offer products, while others can, while they’re both violating a stated Zazzle policy identically or similarly. It’s also a reasonable shopkeeper to shopkeeper issue to discuss in a forum, that Zazzle should have clearer content policies on such things, to explain why some of those designs are “okay” and others aren’t.

But, it’s pretty obvious that Zazzle selectively pulls stuff; it’s called, “Other people on Zazzle reporting it through the ‘Report Violation’ link.

Um, no, you’re not getting it. What we’re saying is that of the designs that are reported, Zazzle is reviewing them and knows they are violations (and they have been correctly reported), but Zazzle chooses to “turn a blind eye” and keep them live. Bringing us to…

Okay, then, why are they so resistant to take those other designs down?

Money! They’re probably trying to hold onto those designs for dear life…they’re most likely proven or hot sellers on Zazzle (especially the ones promoted on their prominent ’80s page), and generate quite a bit of revenue for the company. Deleting them could damage cash flow, and additionally, piss off their more prominent shopkeepers who created those designs. Zazzle doesn’t want to do anything to lose those guys, or endure their ire.

Purely speculation: Zazzle has a list (not necessarily written) of shopkeepers they give preferential treatment to, protecting them from copyright violation reports more than others. (In other words, Zazzle turns an even blinder eye for certain stores.) We know that comes off as a pretty harsh accusation (well, speculation), but as we asked upfront, please take a step back and consider…is it possible?

More pure speculation: Some of those protected designs could be Zazzle in disguise. That is, Zazzle posting designs, under the guise of an outside shopkeeper. Again, not confirmed at all, but…possible?

With all the energy you’ve put into this ZazzWipe! site, why not just direct it towards designing original humor t-shirts, that are “safe” and not in the copyright infringement gray area?

We’re going back to it, right now. But we want to hear from you! Comment below (anonymously is fine), or you can email us at zazzwipe(at)gmail.com!