UPDATE: Tolkien estate didn't take down badge, claims Zazzle found it "potentially infringing"

This morning I heard from Steven Maier, partner at the Oxford law firm of Manches LLP, on behalf of the Tolkien estate. He wrote to say that the estate was not involved in Zazzle's takedown of a badge reading "While you were reading Tolkien, I was watching Evangelion." According to Maier, "Zazzle has confirmed that it took down the link of its own accord, because its content management department came across the product and deemed it to be potentially infringing."

Which is odd, because Adam Rakunas's post on the subject implied that Zazzle had told him they'd written on behalf of Tolkien's heirs. I've written to both Rakunas and Zazzle for an update.

I'm sorry for misidentifying the Tolkien estate as responsible for this inanity. While they have used copyright threats to censor at least three novels tangentially involving Tokien's characters or personage (that I know of), this button wasn't their fault, it was Zazzle's.

Tolkien estate censors badge that contains the word "Tolkien" (Thanks, Steven!)

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

MORE: Action • Business • Culture • dmca • tolkien

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Bradley W. Schenck

Just last week Zazzle pulled a design of mine (“Do not meddle in the affairs of wizards…”). I assumed that I must have added the word “Tolkien” to the product’s tags, but since they deleted it, I couldn’t be sure.

However I searched their marketplace for products tagged “Tolkien” and there were thousands. So I have no idea what criteria they’re (mis?)applying over there.
Anonymous

Can Zazzle be prosecuted for fraud? Do I smell any kind of class action brewing?
codeman38

If the case was that the estate complained about a particular Tolkien shirt and Zazzle removed everything related, this isn’t the first time Zazzle has done that.

Back in 2008, they pulled down a number of shirts critical of the organization Autism Speaks; when the designer of one such shirt contacted them for clarification, they revealed that his shirt had been removed proactively, not because of any DMCA complaint. I wrote about the initial takedown in this post, and the subsequent clarification from Zazzle in this one.
Nancy Jane Moore

A paranoid content management department makes more sense than the Tolkien Estate asserting an IP claim, if only because the claim is so ridiculous.
Galadriel

Innnnteresting.
Adam Rakunas

It’s no implication: Zazzle Content Review told me “We have been contacted by The JRR Tolkien Estate, and at their request, have removed the product from the Zazzle Marketplace.”

I’ve posted the entire email exchange here:

http://www.giro.org/2011/03/01/the-zazzle-emails/
Anonymous

For Christ’s sake, could you have picked a more loaded word than “censor”?

As for the three books, I’m aware of “The Last Ringbearer” and “Mirkwood,” but what’s the third one? And can they really be considered only tangentially involving Tolkien’s characters or personage, considering one is quite blatantly set in Tolkien’s universe, and the other features it heavily?
Daemon

It could also be that Zazzle was contacted once, very forcefully, regarding some other Tolkein related product, and that they now over-react to anything else with that name attached to it.
candycritic

I’ve had a few items pulled from Zazzle and I assumed it was from the companies represented, now I have doubts.
shadowfirebird

Well, either way — good reason to avoid using Zazzle. Plenty of other similar companies to use.
Anonymous

Did Cory ask Steven Maier, while he had his attention, if the button was “ok” with the estate? Just wondering, as that would have cleared up at least some part of this.
Robotech_Master

It occurs to me that we might be looking at this the wrong way. Zazzle probably wasn’t afraid of it infringing the name “Tolkien”. But they might well have been worried about a trademark violation on “Evangelion”.

On the other hand, there are still plenty of Evangelion buttons up there, too. Including the original button, which appears to be available for purchase again.
marco antonio

I’ve had similar run-ins with Zazzle. They simply pull the stuff down (ie, completely delete it), notify you later, and basically say ‘it’s our prerogative’… for very, very petty things (like the Tolkien thing).
Anonymous

oddible, the facts aren’t even known yet. Look at the comment from Adam Rakunas and follow the link to the email exchange between him and Zazzle. At least one party here is making misleading statements, wilfully or not. It’s certainly not clear that Cory’s done anything wrong.
Anonymous

Wow – what bullshit. Zazzle should fire their entire “content management department” (ie: a single lonely pasty-skinned Tolkien fantard without a sense of humor or an ounce of wit).
Flashman

I used to work right next door to this law firm in Oxford. A room facing the garden there was pointed out to me that, legend had it, contained a safe holding the original manuscript of ‘Lord Of The Rings’.
oddible

Christ what an asshole! You know it is one thing to draw a line in the sand on a copyright issue (such as, no, you cannot extend the Tolkien mythos so as to not impact positively or negatively the gem that he has gifted us), but it is another to start pillorying those who have drawn that line, in your very public forum, by misrepresenting that claim and giving a potentially very wrong impression of what the Tolkien estate may be trying to do. Those who have strong idealistic agendas would be wise to temper themselves lest they lose credibility or even their legal footing. I have no idea if the way the Tolkien estate is handling copyright is really an issue, but I do know that these posts have incorrectly (perhaps even libelously) presented the Tolkien estate in a very negative light and “sorry” doesn’t really undo the public damage.
5ynic

Wow. Imagine the world if Fox news and the Murdoch press said “oh, sorry, evidence seems to contradict what we wrote yesterday – we’re asking all involved for clarification”.
I can dream.
Birko

Is Boing Boing’s legal team in a flurry now?
All very interesting legal concepts.
ChibiR

Hrm, interesting. Out of idle curiosity, what would be a good/better alternative to Zazzle? I don’t have anything anywhere, but if the day comes, I’d like to know which companies to avoid or to approach.
Churba

After an idle glance over the site shows that it’s unlikely. Zazzle seems perfectly comfortable selling copyright infringing shirts – Actual copyright infringements, not shite like this – that Zazzle are happy to have one link away from the front page, without taking them down or doing anything whatsoever.

I also recall them selling a whole bunch of unlicenced Black Mesa, Half life, Portal and Left4Dead merch, till Valve found out and had a strong word in their collective ear.

Zazzle taking it down because of a copyright complaint – Not unlikely.

Zazzle taking it down without Tolkien estate intervention – not bloody likely.
Anonymous

As a book editor, my one interaction with obtaining permission to use brief excerpts from The Hobbit in a novel was entirely pleasant. The copyright holder didn’t even charge a fee.
TEKNA2007

Maybe Zazzle was contacted by Tolkien’s legal team at Manches LLP, on behalf of the estate but without its direct knowledge of this incident. Assume that Manches has been given by the estate the general mission of protecting Tolkien IP, and represents that they are speaking for it, hence Zazzle’s perception that they were “contacted by The JRR Tolkien Estate”. Later, an Internet ****storm ensues, and to redirect some of the ill will away from the estate, it becomes advantageous to reframe the situation and stop saying “we are Tolkien” and start saying “umm, no, actually, we’re separate from Tolkien, although we do for now represent them in their IP interests.”

If that were the case, it would be an awfully familiar story.

I know that there’s law relating to “Duties of Agent to Principal”. I wonder about “Responsibilities of Principal for Actions of Agent”.
Meadslosh

I think we’re all missing the real point here: someone in this world thinks that pseudo-philosophical mecha fights with angst-ridden teenagers are of more value than -Tolkien.-
Anonymous

Zazzle did the same thing to me. I posted a “20 Neil Gaiman Facts” T-shirt with permission from Gaiman. They cancelled all orders, and eventually (after several e-mails) notified me that my product violated Gaiman’s “rights of celebrity,” and the only way they would permit the sale was if Gaiman contacted them directly.
Anonymous

And “Christ what an asshole!” is such a fair way to start a post about fairness.