Dan vs. Zazzle (or, The Curious Case of Schroedinger’s Calendar)

Zazzle, I always liked you. You saw what a lousy job CafePress was doing with on-demand one-off publishing, like hats and mugs and shirts, and said, “Hell, we can do that, and we can do it better.” So you took their business plan and ran with it and it was good (and it led to copyrighted banner images like the above, which are the exclusive property of Zazzle and not me). Besides, I like supporting San Francisco businesses, even if they don’t have original ideas.

For years I bought pre-made calendars features photos of guitars I would never own. Last year,as a personalized Christmas gift, Kat made me a Zazzle calendar of all the guitars I already own. I put it on my wall at work and got lots of compliments from people who liked the photography and thought it was a sweet thing for a wife to do for their crazy husband. As you can see, it was very nice.

Right after it was made, we had a major hard drive crash and all those guitar photos were lost. This summer, Kat re-shot the entire collection and promised to do a 2010 calendar with the new photos. They came out great. We spent three hours going over what photos we liked, which ones should go where, and how I wanted it to look. We uploaded it to Zazzle and ordered two for ourselves. It was immediately listed on Zazzle’s site.

Zazzle’s automatic robot wrote back and said our order was canceled for copyright reasons. That is defined with a bit more clarity here but I still do not understand what part of that calendar is violating someone’s copyright; it was a generic rejection letter and did not address the specifics of the work in question.

I thought it might be a mistake over the holidays, so I ordered it again. Same thing.

I’m confused. These are the guitars that I own; these are her photos. Remember the whole banner ad at the top of the blog post? “Your Photo Here,” “Your Design Here”? Who is claiming copyright on a project that we created?

Eventually one of the human Zazzle robots wrote back and said the following:

The Fender logo/concept is the protected intellectual property of Fender Guitars and may not be used on Zazzle products without permission, regardless of who the original artist or photographer may be. We are sorry for any inconveniences this may have caused.

The email noted that “If this issue is not resolved to your satisfaction, you may reopen it within the next 0 days.”

Now, I do not even know what a “logo/concept” is, but it isn’t something I buy strings for and tune and play on a regular basis. You can see the Fender logo as part of the February collage of Strat photos (as you could last year, on the calendar they printed without question), but the “Fender logo/concept” certainly isn’t the point of this calendar.  (Plus, who is “Fender Guitars”? That’s not even the name of the company — an important detail if you’re going to cite legal concerns, I’d think.)

So this immediately led to several questions in my head.

Q: Does this mean you can’t make anything with Fender products on it at Zazzle?
A: No, as there are dozens of products that do exactly that. Try searching Zazzle for “fender guitar” or even the more specific “fender stratocaster” and you will see for yourself.  (By the way, nothing comes up if you search for “fender logo/concept”.)

Now, maybe — maybe — all those products are in the same boat, and you cannot actually buy any of them; maybe if you try, your order gets canceled like ours did.

Q: If all those products exist but you can’t buy them, why are they still showing up on the site?
A: This is my biggest and most crucial question right now, and I don’t know the answer. Maybe Zazzle is simply inflating its search results to claim some sort of “thousands of items available” marketing line? Clearly, you can see the calendar we created; you can even attempt to order it. But you can’t actually buy it. It both exists as an item for sale and does not exist as an item for sale; it’s Shroedinger’s Calendar.

If you sell the item, list the item. If you don’t sell the item, remove the item. But by listing products that do not exist, Zazzle is getting positive associations with products they do not sell. How is that fair?

Here’s another head-scratcher: If the robo-rejector is smart enough to see something Fender in there, why doesn’t it nuke it at first upload? And why does Zazzle put its watermark over the pictures of Fender’s guitars?

Q: Zazzle’s blaming Fender. But can Fender really tell you not to do anything with your photos of their products?
A: If we were doing something malicious or misrepresentative — like saying “Fender Sucks” across a t-shirt with a Fender guitar on it — I could understand the rejection. But this was clearly not one of those instances; you can see for yourself if you flip through the digital preview of the calendar.

Q: But Fender still owns the Stratocaster shape.
A: And I’m not claiming ownership of that; I’m saying these are my photos of my property. Last time I checked, once I brought the guitar home, it was mine to do with as I saw fit, and no longer Fender’s problem. The warranty on my 1988 Fender Stratocaster expired a long time ago.  If they want to claim some partial ownership of my Stratocaster, they can send someone over to give me a free setup and change the strings. But they don’t act like a baby daddy should, so I figure they are out of the picture. (And if they are going to claim ownership, they’ll be pretty pissed about all the mods I did to the July guitar without their knowledge.)

More importantly…did Fender actually chime in and complain? Did Fender see this calendar and deem it a copyright violation? Or is Zazzle just robo-reacting to a potential issue? I’m guessing the latter, since because when we uploaded the totally-owned Palette-Swap Ninja logos and artwork for our band t-shirts, we were also asked, “Do you really own the copyright on this?” Um, yes, Zazzle — did you really read the user agreement you wrote and asked me to sign before I uploaded them? It said “you really have to own this.” And we do.

Q: So whose side is Zazzle on?
A: Their own, of course; they have to cover their legal bases, and I understand that part of it. But it seems more than a little disingenuous to advertise your service as something warm and inviting for indie artists and designers to use and then deny them because of a hidden rule or mysterious, unexplained exception.

Q: Why can’t you just go make the thing somewhere else?
A: Well, that appears to be the only option, doesn’t it? Plus, Zazzle is no longer the only site that does print on demand at a high quality. I’m looking at Lulu, I’m looking at Zazzle’s old friend CafePress, and I’m looking at other places I might partner with for the Palette-Swap Ninja merch.

But more than anything, I want to give my old print-on-demand friends — you know, the folks who totally didn’t steal their concept from another company and have ultimate respect for intellectual property — a chance to explain their hypocrisy away.

I’ll let you know what Fender says, too.

UPDATE 1/6/10: Fender has yet to respond, and Zazzle simply removed the calendar — and that’s fine with me. If you can’t sell it, don’t advertise it — otherwise, it’s fraud. I’m investigating new outlets for Palette-Swap Ninja’s gear and would be open to your suggestions.

UPDATE 1/9/10: Lulu.com to the rescue. They printed my calendar exactly as ordered — and for less than Zazzle.

10 thoughts on “Dan vs. Zazzle (or, The Curious Case of Schroedinger’s Calendar)

  1. So it sounds like you've contacted Fender to get permission or see if you even need it?

    It looked like most, but not all the other Fender merch had logos still on them. Would Photoshoping out the logo fix their issue?

  2. It stinks, and usually neither side is willing to stretch out to give the thumbs up OR down to the other on allowing things like this to take place. I'd mentioned our old site logo at teh-nook.com where we used an older joystick which resembled a Pico controller. Notice, resembled…as in, it wasn't an actual controller, only a likeness with the same colors and the finer details missing like some extra switches and a cable. Out of nowhere while trying to do the cafepress bit, we(the site store) got popped with an infringement notice by Atari, which was strange as we all thought Sega would be the obvious holder to all rights therein.

    After contacting the person Cafepress directed me to, I was asked to submit a few forms to rectify the situation and was never put into contact ever again with anyone dealing with this issue. To this day(some year and a half later) that Cafepress store still has the products that they refuse to sell due to the flag raised by a single person unwilling to speak with us regarding the matter. Even worse is the flag didn't need anything more than an email to raise, yet requires a whole lot more to clear out.

    Best bet is to move on and find an alternative printer. Thanks for the Lulu mention. I might give that one a go one day when im motivated enough to take the time to bring us site shirts again. >_>

  3. Bummer, I just discovered Zazzle for Christmas presents. I even made one original t-shirt and was super excited to get it. Hope they talk to you!

  4. Guitar designs are not copyrightable — I remember reading an interview with Leo Fender a LONG time lamenting this fact. It's also why you see so many Strat knock offs.

    -mark crump

  5. I've read about the same kind of dispute over who owns the image of a building. Yes the image of a building, there are hundreds of them in cites, by looking at them you may be breaking the law. The dispute is if said building is in a poster or a movie, or something, should a percentage of the sales go to the image owner? And who is the image owner the architect or the person who payed for its construction? I have seen signs outside of famous buildings telling tourists they can not take pictures of the building without written consent. Now lets say a famous Graffiti artist paints something on the building, and then someone else takes a picture of that painting. Who owns the picture? The argument is as endless as it is stupid but it is real, because the architect, building owner, graffiti artist can all threaten to sue the photographer, and a threat is costly enough to make the photographer think twice about taking a picture and that's the worst kind of censorship. I blame the recent changes to copyright law that makes the guidelines of fair use fuzzier. Teachers have been fired for showing 30second clips of movies in class, youtube has taken down family videos because a stereo is playing in the background (Universal doesn't like their music on YouTube) and now Zazzle is worried about being sued from Fender. It's not that Fender's threatening to sue them, Fender may not know who Zazzle is or even care who Zazzle is. Fender might like the idea and would like you to do free advertising. It's just that Zazzle can't take the risk.

  6. “If you sell the item, list the item. If you don’t sell the item, remove the item.”

    Looks like they took your advice, because I went to the link you gave and there was no calendar.

    My guess is they are overreacting to the Fender logo appearing in pictures, which would be hard not to have given you're showing their guitars. If you couldn't post any product because the maker's logo was showing, they'd be out of business. And they may be if they keep rejecting potential purchases like this. Seems if you want to make a stand, you'll need Fender to okay your calendar as non-infringing. Nice…maybe you need to hire a lawyer to make a calendar now…

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  8. This is getting silly, it's a tribute, not a rip off and hell it looks like you've invested in the company pretty heavily!
    Thanks god I own my own images on zazzle…
    Must

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