Not this again. We’ve noted many times in the past that the two popular “print on demand” t-shirt/merchandise operations online, CafePress and Zazzle, too frequently seem to quickly take down content based on bogus legal threats. Last year, after Zazzle caved in to threats from Homeland Security and the NSA over parody logos, a lawsuit was filed by Dan McCall, whose designs were taken down. The geniuses in the US government realized they were in trouble and admitted that there is no violation in parody logos.
You would think, therefore, that when these sites received demands to take down more designs posted by McCall, they’d think twice. But no such luck. Both Zazzle and CafePress took down the following design that McCall had posted:
Thankfully, Paul Alan Levy from Public Citizen (again, who has represented us in the past as well) has sent one of his masterful demand letters to Ready For Hillary explaining to the PAC why this situation is ridiculous, why it has no legitimate claim for a takedown, and giving the PAC three days to retract the takedowns or face a legal action for declaratory judgment of non-infringement — including seeking damages for lost sales and attorneys fees for frivolous takedowns.
The communications from Zazzle and CafePress do not reveal whether your client’s claims are based on copyright or trademark; Ready for Hillary could have threatened these companies with either to take advantage of the fact that, although 47 U.S.C. § 230 generally gives providers of interactive web sites statutory immunity for content provided by another, the immunity does not apply to intellectual property claims. However, the difference does not matter, because in either case McCall’s use is plainly parody. McCall uses the “I’m Ready for” words and design derisively, replacing the word “Hillary” with the word “oligarchy.” This is a reference, in part, to the recent discussion of the increasing tendency of American politics to reflect rule by oligarchy, rather than by true democracy, as reflected in a recent paper by Martin Gilens and Benjamin Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens. The parody refers more specifically to the prospect that the 2016 presidential election may be a contest between a member of the Clinton family and a member of the Bush family. Nobody could possibly look at McCall’s design and think that it is sponsored by your committee or, indeed, by its candidate, so there is no actionable likelihood of confusion. Moreover, even assuming that you had a registered copyright in the Ready for Hillary design, McCall’s product represents non-commercial commentary on the copyright holder and cannot possibly interfere with sale of the copyrighted work.
Moreover, critical speech directed at a candidate for president is squarely protected by the First Amendment, hence any application of trademark law to quash such uses is highly suspect. Although McCall’s products are sold, their contents are noncommercial speech, which qualifies for full First Amendment protection….
The staff of Ready for Hillary should know better than to send frivolous takedown demands like these. We would, however, prefer to resolve this controversy without litigation. We are, therefore, giving Ready for Hillary three days to retract its takedown demand. Absent a retraction, we will file an action for a declaratory judgment of non-infringement, seeking damages for lost sales and an award of attorney fees for the issuance of a frivolous takedowns.
Levy, in the blog post linked above, also has harsh words for Zazzle and CafePress for caving to the takedown demand:
Although Ready for Hillary bears the main responsibility for the takedown, the spineless response from Zazzle and CafePress is disappointing – both companies removed the design without any apparent consideration for the rights of its customers to comment on prominent political figures through parody. When McCall asked for an explanation, both companies responded with generalities (here are the emails from Zazzle and CafePress). The companies’ unwillingness to provide copies of Ready for Hillary’s actual takedown demands prevented McCall from focusing his arguments on the PAC’s actual claims. CafePress simply ignored a request for a copy; Zazzle outright refused on the ground that takedown communications are “confidential” (because caving in to frivolous takedowns is so embarrassing?).
In past years, we have found CafePress to be tougher in its responses to foolish trademark claims, refusing to remove designs and going so far as to bring its own declaratory judgment action against the Republican National Committee when it persisted in claiming that designs using its elephant logo to comment for or against various candidates in the primary, and for or against the Republican Party itself, violated its trademark rights. That both companies have been so supine in their responses to takedown demands as we begin the 2016 presidential election season is a discouraging sign for the vitality of free debate about the major candidates.