Last week, I got an email from a lawyer representing the Tolkien estate informing me that his clients hadn't demanded that Zazzle remove Adam Rakunas's badge reading "While you were reading Tolkien, I was watching Evangelion."
So I wrote to Adam and asked him what Zazzle had told him about the affair. He was good enough to post all of his correspondence with Zazzle over the matter. On February 28, "Mike" from Zazzle wrote to Adam to say:
With regards to details of the infringement, all legal documents are confidential therefore I cannot release this undisclosed information. But we ask that you do acknowledge the fact that we were contacted by The J.R.R. Tolkien Estate, and at their request to prevent and remove any unauthorized and infringing third-party uses of their copyrights, trademarks and intellectual properties.
But when Adam pressed them for details (and after a lot of bad publicity), "Mike" wrote back:
This email is in regards to the deletion of your button entitled "While you were reading Tolkien,I was watching Eva". After corresponding with representatives from the Tolkien Estate, it's been brought to our attention that the design was removed inadvertently due to a miscommunication on our part.
I've written to several addresses at Zazzle seeking clarification, without an answer. But here's my guess: the Tolkien estate had previously contacted Zazzle and said, forcefully, "You keep carrying things that infringe our copyrights and trademarks. We expect you to take them down and prevent this from happening in the future." So Zazzle instituted a blanket policy of removing anything that even smelled of Tolkien. Then this dumb thing happened, and the lawyers called back and said, "Well, that button didn't infringe on our rights, so you shouldn't have taken it down." And Zazzle put it back up.
I've asked the Tolkien estate lawyer to confirm this repeatedly; he's said things like "I repeat that the Estate made no complaint concerning this badge, which was removed on Zazzle's own initiative. There is no further relevant information to add." When I asked again, "Did the estate ask Zazzle to engage in pro-active policing of its marks and
copyrights?" he stopped responding to my emails. I guess you can infer what you want from that.
Anyone from Zazzle reading this: I'd love to get your side of the story.