Who is responsible for the designs your customers upload?
The general thought has always been that a user is responsible for the content they upload and download on the web. But in recent months this perception has been challenged in a number of high-profile cases around the world which has the potential to dramatically change how all us do business on the world wide web.
An example relevant to our industry is the recent lawsuit between Zazzle and Summit Entertainment who owns the licensing rights to the Twilight movies.
Summit Entertainment claim Zazzle were responsible for the thousands of Twilight fan shirts, mugs, caps and other merchandise that resided in the Zazzle site despite the fact that users created them, not Zazzle.
Zazzle is seen by many as simply the tool used and this, a loyal army of Zazzle supporters insist, is the reason Zazzle should not be held responsible. One even compared Zazzle to a HP printer – Would you sue HP if someone at home printed off dodgy posters and collector cards on one of their desktop printers?
However Summit argued that Zazzle had ample time and notification to remove the content practically after receiving a cease-and-desist letter in November 2008 and again in August 2009. Summit claimed they received no response.
So who is responsible?
Another example is the recent lawsuit and sentencing of three Italian Google executives for a video a user uploaded to the Google Video site.
Should sites such as Zazzle and Google be held responsible for the content their users publish?
Furthermore, should a non brick and mortar company who works in the virtual world be subject to laws in other countries?
iiNet, an Internet Service Provider in Australia, recently won a lawsuit filed against them by a consortium of movie studios who claimed iiNet was responsible for the content (namely pirated movies) their users downloaded.
iiNet won but an appeal still keeps this case open and we all eagerly await the verdict.
So again, who is responsible?
It’s hard to say with so many conflicting cases bouncing around the world but when it comes to copyright it would always be wise to play it safe.
Some argue the trend is moving towards the tool provider and not the content creator being responsibly for content uploaded to a site but this could be a dangerous direction to go. It seems the so called Digital Millennium Copyright Act “safe harbor” is no longer safe…
As a business its good practice to ask all customers to sign an artwork submission agreement which forces the customer to state they have permission to use the designs.
In addition to this, by asking your customer to sign an agreement it not only protects you from artwork errors such as spelling mistakes but also makes your customer aware that you are copyright conscious. There will be many cases where you simply won’t know if your customer truly has permission to use this design that you’ve never seen before.
No one can expect you to know every design in the world but if a Twilight, Nike or other obviously licensed designs passes in front of you alarm bells should ring.
In cases when this does happen request that your customers provide an official letter of permission from the copyright owner. Who knows, Nike might sponsor a local sports club!
In the case of DecoNetwork – If a user or affiliate store uploads a design you believe is a licensed design question it for the security of your own business. Ask them for a letter of permission from the copyright owner, and if none is provided get rid of it.
Overall be safe by playing it safe and always ensure your customers take responsibility for their designs. If you receive a notice to take down or a letter of challenge I don’t advise ignoring it like Zazzle. Take it seriously and if needed seek advice. However, with all the letters and agreements in the world in the end you’re the one who presses the “start” on your decorating machine. So if you don’t feel right about something it’s probably not right so best not risk your business over it.
Brenden Prazner
