Another episode in the ongoing saga of CafePress’s censorship of my Anti-Ketchup Shirt (previously discussed here and here): Today I called them up and after a rather long wait, I was finally transfered to their “Content Usage Department”. The guy there told me that my design was in violation of Heinz Ketchup’s “trade dress rights” which could include any similarity to the color, shape, or design of their packaging in my image. I tried to get more specific details — was it the red color? the shape of the bottle? — but the Cafe Press operator insisted that they “can’t give legal advice”. After much prodding, he finally suggested that I should try to change the chevron and oval shapes of the bottle’s decals. I’m going to do that in the next day or so. I’ll let you know if it sticks. . .
Note: after receiving a very nice email from Anthony Volodkin from Hype Machine, I agreed to take down access to my actual Hype Machine download script. He was worried that the script, if it caught on, could expose him to litigation from artists and cause his service technical problems. I’ve left my post on the subject up in a slightly altered form but now including (with his permission) some of Volodkin’s comments on the subject. I think the whole thing makes for a relatively illuminating episode about the climate of confusion and fear in which anyone trying to do anything creative with online music distribution must operate.
Tagged: cafepress, censorship
From Ars Technica today [http://arstechnica.com/news.ars/post/20060203-6112.html]:
Here are the types of fair use allowed for trademarks under section 43 of the Lanham Act.
(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
(B) Noncommercial use of a mark.
(C) All forms of news reporting and news commentary.
Note especially item B, the “non-commercial use” exception. This is a particular point of concern to Mr. Stewart, who points out in his letter that it has “been generally understood to protect artistic expression, even when the art is sold in a book, drawing, song or movie.”