For All of Us Who've Seen the Light

Salute the Dead and Lead the Fight

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Of fandom and intellectual property (but not like you think)
TEXT - Make cupcakes not war
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.


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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!!

Edited at 2010-07-08 04:10 am (UTC)

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.

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.

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

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.


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. :-/

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).

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