Of fandom and intellectual property (but not like you think)

[sophie_448]

I know you don't see me around SPN fandom much anymore. Okay, okay, at all really. (I'm not dead, I'm resting!) But something's come up that I think as many people as possible should be aware of.

So, you know Zazzle, right? (Like CafePress only better, but less successful). Well, eons ago (I'm fairly sure it was mid 2007) I created some products on there. Most of them I made just for myself, ordered them, and called it a day. But while I was making stuff, I did make one keychain that I decided to put up for public sale in their "marketplace." I didn't put it up to make money (I've made less than a dollar from it in three years), I just thought people might like it, so why not?

The key chain in question was simple black with white text. The text read "Metallicar!" And as we all know, the word metallicar is a fan-coined term. Therefore, I felt I had every right to use it with no fear of legal repercussions. And the fact that it remained public for three years seems to support that.

However, yesterday I got an email from Zazzle informing me that someone had made an intellectual property claim, and that the product was being taken down since it was in violation of their policies.

This is the email:

Dear [username],

Thank you for your interest in Zazzle.com, and thank you for publishing products on Zazzle.

Unfortunately, it appears that your product, Metallicar!, contains content that is not suitable for printing at Zazzle.com.

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

Please help us make our content approval process better by taking this short survey.

The details of the product being removed are listed below:
• Product Title: Metallicar!
• Product Type: Key Chain
• Product ID: 146857601856439266
• Result: Not Approved
• Policy Violations:
o Design contains an image or text that infringes on intellectual property rights. We have been contacted by the intellectual property right holder and at their request we will be removing your product from Zazzle’s Marketplace due to intellectual property claims
• Image: Image

We apologize for the inconvenience, a detailed description of the policies are located here.

If you have any questions or concerns about the review of your product, please email content_review@zazzle.com
Best Regards,
Content Review Team
Zazzle Inc.

I considered just ignoring it. I'm busy, and I don't particularly care about a stupid key chain I made years ago, right? But it niggled at me. Because I knew that the word "metallicar" was the only content and therefore the only potentially infringing content on the key chain. And as far as I knew, there was no one who could legitimately claim a copyright on it. So, I wrote back.

Hello,

I just received a notice that a product I had published on Zazzle was removed for copyright violations.

(edited to remove information copied from the original email)

The product in question is one I created several years ago. Since then I've thought very little about it, but I was surprised to get this notification. The keychain was white text on a black background. The text read "Metallicar!" I would be interested to know who made the copyright or trademark claim on this item as I do not believe it violates any intellectual property laws. While the term is tangentially related to the CW series Supernatural, the word "metallicar" itself does not originate in any episode, script, or other network property. Rather, it is a nickname coined by fans. While I don't fault Zazzle for abiding by its intellectual property policy, I believe this to be a false claim. The term in question was not invented by Warner Brothers or any other corporate entity, so I fail to see how they could claim its copyright. If there is some other possible violation in a black and white text image, then I would appreciate knowing that as well. Thank you for your time.

I received the following today:

Dear Zazzler,

Thank you for your email to Zazzle.com.

Your product was removed because it contained an image and/or design that infringes on the intellectual property rights of Warner Bros. Entertainment Inc. More specifically, Supernatural.

A detailed description of Zazzle content policies is available at: http://zazzle.custhelp.com/cgi-bin/zazzle.cfg/php/enduser/std_adp.php?p_faqid=143

We apologize for any inconvenience and thank you for being a seller at Zazzle!

Best Regards,
Content Management Team
Zazzle.com, Inc.

So, it's confirmed that Warner Brothers and Supernatural are the ones claiming copyright. This is seriously troubling to me. My knowledge of copyright law is sketchy at best, but I'm pretty sure you can't copyright something that doesn't belong to you. So, either you are the creator (clearly not the case here) OR you've purchased those rights from the creator (extremely doubtful that this is the case). Honestly, I can't even enumerate the ways that it is skeevy for a huge corporation to claim rights to fan creations.

Let's be clear here. A lot of fan creations exist either in a legally gray area, or are outright infringing (albeit without profit). In this instance, however, the term in question has no direct relation to any Warner Brothers property. Yes, it was inspired by the show, but nothing about the word would indicate its relationship to Supernatural unless someone, like your fans, TOLD YOU ABOUT IT. It has no direct, legal relationship to anything that Warner Brothers owns, therefore, they have no rights that I can see to claim ownership of it or to stop me or anyone else from making money off of it. I don't care about the spare change I made from that thing, but I do care about the principle at stake here.

I don't think it's right for a large media property to feel like it has a right to claim and make money off of the creations of its fans. It feels to me that because of the situation with fan fiction, studios may feel like they can walk all over the people who pay their bills. Fanfiction's legality may be questionable, but fans don't really have the resources to go to court, so they will typically comply with any cease and desist orders. Studios/creators/authors who allow fanfic to exist unchallenged then, perhaps, feel somewhat magnanimous, even though it's far from clear that they would win in the event that someone actually contested such an order. And somehow we go from a sort of don't ask, don't tell situation to one where creators feel that it's then okay to start claiming and profiting from fan creations of this kind, which they really have no right to do.

Unfortunately, I have neither the time nor the resources to actually do something about this legally, but I thought it was the least I could do to make sure fandom knew what was going on.

If you're questioning your memory like I was, here is the Superwiki's Metallicar page with a link to the first use of the term on a TWOP thread.

Comments

[missyjack.livejournal.com]

Yes entirely skeevy. i think its a case of where being a big corporation will win out. i suspect that at some point WB may have taken out a copyright on the word - possibly because commerical merchandisers started using it. The history of the use of the term on merchandise can be found here.

You don't have to create something to copyright it - eg companies copyright particular colours or general words eg Apple) associated with their brands. It sucks of course, esp when there is no threat to the companies profit. And look at all the stuff on eBay that uses photos from the show on keyrings etc!

eta I remember years ago anteka had a claim from the WB agianst some stuff she had on Cafe press - i think it was a black silhouette of the car!!

[sophie-448.livejournal.com]

Oh, I have no doubt the big corporation holds all the cards in this situation. Like I said, I know next to nothing about copyright law, but I do think it's generally the case when it is something unique like this, that strictly speaking they would need to obtain the rights from the original creator. I don't know about elsewhere, but in the US, I believe things like colors and "Apple" tend to be trademarked rather than copyrighted for exactly that reason, although I don't know what the difference would be in terms of enforcement.

Oh, that's interesting! It seems like if anyone could make that claim it would be Chevy.

[missyjack.livejournal.com]

I just thought that the other factor here may be the band Metallica!

I checked and their music is under license to Warner Brothers, so the claim may have come from that direction rather than Supernatural.

[sophie-448.livejournal.com]

I did wonder if that could be a factor, but their email back to me did specify that it was Supernatural specifically.

[missyjack.livejournal.com]

oops yes. Actually seeing TWOP where the term was coined was the first to use it on merchandise, maybe Bravo who own TWOP could claim ownership. They may have sold it to WB I suppose.

[sophie-448.livejournal.com]

Hmm, yes, I suppose they could have. Although I still kind of want to demand to see their paperwork trail (not that I could). If that's what happened it's an unfortunate reminder that the things we think are "ours" on the internet may not be. :-/

[missyjack.livejournal.com]

I suppose of course WB could argue they give us pretty free rein to play with their creations (not that I think it makes what they did right).

[jesseofthenorth.livejournal.com]

Well doesn't this just have layers of suck.
Honestly? I wonder what they hope to gain?

[sophie-448.livejournal.com]

It does indeed! missyjack pointed out above that there has been some use of the term on commercial merchandise, so possibly their actual aim is to make more money off Creation and the like, but ... that doesn't really make it less skeevy.

[onepunkymisfit.livejournal.com]

That's absolutely ridiculous. D:

[sophie-448.livejournal.com]

It is! Even if there's somehow a legitimate way that they got the rights to it (which there could be) it still SKEEVES ME RIGHT OUT :-(

[heidi8.livejournal.com]

Ive gone through this process before with Harry Potter products, and the way CafePress and iTunes Apps work - and I assume Zazzle too - is that they have a list of terms related to various media properties and they don't even bother to go to the IP rightsholder. Thte just do searches through their system every so often and pull things that match up with a keyword and pull them.

[sophie-448.livejournal.com]

Not that I would put it past a big company to lie, but the notification did say that they had been contacted by the copyright holder. And since the product had been around so long, it seems like maybe WB just started looking at products either on Zazzle or with the use of Metallicar specifically.

(I like your sparkly fair use icon!)

[heidi8.livejournal.com]

Technically they didn't say they had been contacted about your product specifically. They may have just done a search for everything with the term Metallicar at WB's request, which is still overreaching but not particular to you. Fwiw, they don't have a pending trademark application or registration at the USPTO for "Metallicar" And back in the Olden Days like 2001 and 2002, companies like CafePress used to require a filing before stamping on usages. So frustrating that it seems they don't anymore.

[jehane-writes.livejournal.com]

IAAL, though not an IP lawyer, and not a US-based one. It seems unusual that a fan-coined term would be subject to copyright (or trademark). There's a common law tort of passing off - essentially if Warner Bros/SPN can assert your keychain looked strikingly similar to WB/SPN merch or was passing itself off as authorised by/affiliated with WB/SPN, then it could make some argument that you infringed its IP rights. Which is crap, because this law is designed to catch intentional piracy, but I can possibly see an assertion being made in this case, even if your sale ID thing came with a disclaimer.

Sadly, if it's a fan-coined term, then it's unlikely any fan would have true rights over it! Such is the nature of fan creation. :(

[ant3ka.livejournal.com]

I bumped over here from waterofthemoon's post. I had the same thing happen to me with Cafe Press a couple years ago. The WB/SPN claimed copyright on a silhouette of the Impala with the text "rock music plays". Not only was the silhouette vague enough it could have been any type of car, the phrase "rock music plays" has never been used in connection to the show. I did the same thing you did, wrote an email back asking for more explanation, and received the same canned reply.

We make these products to promote the show, not to line our pockets with buckets and buckets of cash. It made me so furious when I saw other merchandise with pictures of Jared and Jensen actually ON IT that was still available for sale. The double standard is ridiculous. I don't know what we can do about it, but thank you for getting it back onto the fandom's radar.

[sophie-448.livejournal.com]

That's ridiculous! I mean, conceivably Chevy could probably try to claim trademark on the silhouette of their vehicle ... if they really wanted to. But I can't see ANY way that SPN could claim any rights over that.

[tsukinofaerii.livejournal.com]

IANAL, but I'm pretty sure you can't copyright a word. Trademark, on the other hand, definitely. I'm inclined to think that this is just a standard C&D. It's just that the two concepts get confused a lot, and copyright is easy to abuse (since it's always assumed to be a valid claim—which works in the hands of individuals, but is outright unethically used in the hands of corporations). If you filed a counter claim, I doubt they'd even pursue it. :\ But still, it sucks hardcore.

[sophie-448.livejournal.com]

I don't think I personally have enough for a counter-claim anyway, but on a principle level I at least wanted people to know. Because I'm not okay with it.

[avellis.livejournal.com]

D= Got here via Sara's post, and EW. That whole thing just reeks of BS. SPN and WB might own the show and the car and the image, and Metallica obviously own their own band name, but Metallicar was all fandom. Same way 'Wincest' is, same way we've smooshed 'Padackles' together.

Besides, I'm not sure if copyrighting a word is on the books, especially if they've never used it as a trademarked brand name or anything. At the very bones of the matter, it's not their intellectual property if they didn't come up with it. It's like trying to copyright 'rock on' or something.

[sophie-448.livejournal.com]

Yeah, idk. Honestly even if there was some avenue where they legitimately acquired the rights (possibly through TWOP) it STILL skeeves me out that they would do it at all.

[verasteine.livejournal.com]

Here via moonilicious, and I was just wondering if the OTW could help you out, if you were thinking of contesting this. They might have a lawyer who could inuire into it, if you really wanted to make work out of this.

[sophie-448.livejournal.com]

They might be able to. I'm really not looking to make a case out of it. Maybe I'm half-assing my fandom duty, but I honestly don't have the time or energy to pursue this. My mom's a lawyer, so I know how drawn out (not to mention ugly) legal proceedings can get, and that's not really something I'm ready to sign on for. I did at least want people to know, though. Then at least I don't feel like a total doormat ;-)

[stormcloude]

Have you talked to the EFF about this? Even if they can't do much, it sounds like the kind of thing they track and should know about to try and keep the big companies from steamrolling individuals.

(Uh, Electronic Frontier Foundation: http://eff.org )

[sophie-448.livejournal.com]

Oh, I hadn't even heard of them! I'll definitely look into it, thanks!

[almightyspaz.livejournal.com]

You know what's sad, that people have been selling their Twilight related crap on Etsy, and you get in trouble for a word that the fans coined, not the writers. If I remember correctly, Kripke made a comment on one of the commentaries about how the fans coined the term, not him.

I'm afraid I can't help you, simply because I know very little of copyright.

[sophie-448.livejournal.com]

Yeah, it's so hard to figure out what's even going on when it seems like things that are blatantly infringing get sold without comment, and then claims are made on things that the studio didn't even create.

[quarterwhore.livejournal.com]

What assholes.

Seriously, the level of assholery is just baffling.

"Metallicar" is not a licensed, registered trademark as far as I know.

I don't know why this makes me RAAAAAAAAGE but it does.

Sorry, bb. :(

[sophie-448.livejournal.com]

The only way I can figure that they could remotely claim rights is if they bought them from Bravo (who own TWOP, and arguably all content posted on those boards), but honestly, even if they have some kind of claim to legitimacy, it's STILL SKEEVY.

[zeerine.livejournal.com]

This has me sad and RAGEful at the same time, freaking asshats.

unbelievable - skeevy is the kindest description

[thecappyboy.livejournal.com]

I'd like to think that fandom is a place where people of all sorts can play and hopefully make things better by seeing new and different ways of looking at the world. Reading this post has made me sad and wiser but entirely disgusted by corporate stupidity and greed.

I've never seen Metallicar used anywhere but in fandom and while that doesn't prove much I'm pretty sure that Warner Brothers doesn't claim very much from slash, why would they care about this? It's senseless and pointless to do this to any fan. Alienating the people that make a show popular seems unreasonable doesn't it? I don't own one of your keychains, I never knew they existed until I read your post but I quite like the idea and applaud your sense of fun and apt application of a fannish word. Go You!

Equally, boo hiss to WB and the petty behavior. I can only say that it's a shame they don't pay more attention to what fans enjoy while they're grubbing for pennies.

"I'd like adjectives for a thousand please, Alex."

"The answer is: Warner Brothers"

"what is pathetic?"

"Why yes! you're correct."

[lapillus]

It might be worth dropping EFF (http://www.eff.org/) a note and see if they have any suggested responses.