(Gotta love Google cached versions!)

So, you uploaded a design and it got "CUPped" with a red box around it. You may or may not have had an email from CafePress about it and the reason(s) why. But you look in the marketplace, and there are exact or similar designs there. Why did YOURS get flagged while those are on the site?

There are several points to understand when this question comes up. The gist of the points is this - just because it is in the marketplace doesn't mean it's alright for you to use it.

1) It could be that the designs you see are being used by permission of the copyright/trademark holder. They do not have to put any kind of notice that they have permission.

2) Basically, it may just be because CP hasn't caught it yet. That doesn't mean it's "allowed".
Thousands upon thousands of images get uploaded to CP daily. While it appears they have some sort of automated system in place to flag designs that may be infringing on other's intellectual property or other rights, that doesn't guarantee that they catch everything upon upload. It may have been uploaded prior to an automated system.

Even if you feel you have the right to sell a parody design or have other "fair use" issues, CafePress has the right to determine that they don't want to spend the time and money to defend its use. After all, they are on the front line of a lawsuit since they are the deep pockets. It isn't "censorship" and it doesn't mean you can't sell it. It just means you can't sell it here.

Feel free to contact cup@cafepress.com with a "lucid, intelligent, well thought-out objection" to the action, to quote Judge Chamberlain Haller. It is not unheard of for them to reinstate a design. Once they have received proper documentation claiming ownership, they must remove the design for legal reasons.

Feel free also to contact cup@cafepress.com with any designs you feel are infringing on someone else's intellectual property. They will appreciate the help.

There may be other scenarios by which you will see a design or concept in the marketplace that you have been flagged for. Others may chime in on this thread to explain those. There are some great threads on this forum about this issue, and hopefully we can get the salient points consolidated here so that in the future we can alleviate the need to create a new post with the above title. Smiler

quote:

Originally posted by Teesed:
Even if you feel you have the right to sell a parody design or have other "fair use" issues, CafePress has the right to determine that they don't want to spend the time and money to defend its use.

Just to add to what Teesed wrote, "Fair Use" simply does not apply to anything anyone creates and sells or gives away on CafePress... period!

Fair Use... from the U.S. Copyright Web site...
"Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research."

Selling a shirt on CafePress is a commercial venture and does not constitute criticism, comment, news reporting, teaching, scholarship, and research in these terms as it applies to copyright.

Some may argue that a shirt can be made that is based on criticism or comment... but as it is a commercial venture, to use copyrighted material in such a way is a published request for a copyright lawsuit. If you read section 107 it further refines the above statement to include info that criticism and comment applies TO news reporting, teaching, scholarship, and research.

In addition, another interesting note from the same U.S. Copyright office article reads, "Acknowledging the source of the copyrighted material does not substitute for obtaining permission." I like to think of it as, stating you are using a copyright image on a shirt and selling the shirt without getting prior permission is the same as borrowing a car from an autodealer like Joe's Auto Sales without permission and driving it down the street with a big sign on it saying "I stole this car from Joe's Auto Sales!" You are simply admitting the theft in a written statement.

The bottom line is, if you did not make the image from scratch based on your own idea(s) and use it without written permission of the actual copyright holder, you are playing lawsuit russian roulette.

These forums are excellent for getting information on CUP policy and practice. It is not a good place to learn what the law is, or is not, in regard to copyright, trademark etc. As Teesed noted - just because CP decides not to allow something does not mean it is illegal.

Fair use is a defense to claims of trademark or copyright infringement. There are several factors evaluated in deciding whether that defense succeeds. "Commercial use" is a factor. However, that a person is expressing their opinion on a T-shirt and selling that t-shirt, does not necessarily deprive the seller of "Fair use" defense.

http://www.citizen.org/pressroom/release.cfm?ID=2631 Just as reading a statute may not tell you the whole story this case also can't tell you whether you may or may not do what you intend. Parody is risky and CP will typically chose not to take on that risk. That is not the same as deciding whether it would win or lose in court.