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, users 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 there 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 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, the money a user may receive from a lawsuit is often less than the potential legal fees required to sue. Copyright holders who win an 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).
The second tactic is to register your work with the Copyright Office. Although 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 holder’s 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 a $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.
Have you ever had your work stolen? How did you deal with the copyright infringenet? What advice do you have?
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.