berndt2

Joined July 2007

Bernd Talasch doesn’t remember being hatched in a research laboratory in Omaha in the late 1950s so maybe that never happened....

Apparently if it's not for sale it doesn't even matter if it breaches DMCA

In the spirit of providing people with an education on my experience with Digital Millennium Copyright Act – DMCA – Takedown notices, and as a continuation of This Journal Post From Earlier I present The Next Chapter

It began with a letter from Redbubble which I received about three weeks after posting the aforementioned journal, dealing with my confusion as to why I kept having items removed from Redbubble. Photos I’d taken, legally, of people, often in a public place where photographers weren’t just allowed or tolerated, but encouraged. Frustrated, I just wanted to know why, and also whether I was right in later uploading photos that were Not For Sale as a way of avoiding further problems. I’ve appended my commentary to each part of their reply, and drafted an overall response further below.

Dear Bernd,
Thank-you for your correspondence. We understand your concern and frustration; you find yourself in good company and can be rest assured that you are not the only one in this situation.

Awesome. You’ve made feel like I’m part of some Awesome Club, without saying “it’s a bunch of trademark infringing scumbags like you that are all in this situation”. Nice, and thanks for that.

As the laws on copyright, trademark and publicity rights vary from territory to territory, the important part of the IP/Publicity Rights Policy is the content owner themselves assessing whether their own rights are being infringed and choosing whether or not to make a report, themselves.
Noted. You’ve covered your bases very well. You don’t have to do anything, and you can rely on others to do what’s in their best interest.

As you know, your photographs were removed from Redbubble.com as a result of complaints from Bravado International Group Merchandising Services (“Bravado”), the licensee of Lady GaGa, The Rolling Stones (including Mick Jagger and Keith Richards), Muse and The Killers’ publicity rights. Their representatives at Bravado have taken the position that any photographic image of them violates their rights of publicity and have threatened to file a lawsuit if such images are not removed from Redbubble.
I understand some of this even if I disagree. Yes I understand that people are protective of their rights, but there’s a difference between “having publicity rights” and “any photographic image of them violates their rights of publicity”. Because… holy shit, man, have you seen Google? I hear they have Lady Gaga photos there. I’m not making suggestions, but Bravado should totally take down Google. Honestly, let’s everybody ditch the hysteria and distil it to its essence, and I assume it’s something closer to “They (being Bravado) don’t want others to commercially gain from these images”, and I’m fine with that.

Please note that submitting a counter-notice to Redbubble does not guarantee that the work will be reinstated and is subject to Redbubble’s IP/Publicity Rights Policy and User Agreement.
Agreed, but I was intrigued that apparently it’s not guaranteed Redbubble will respond in a reasonable time, or in a time that would give me confidence that my counternotice hadn’t merely been placed in an invisible filing cabinet somewhere, and then having Redbubble forget where they put the filing cabinet because, like, damn… it’s invisible.

As our lawyers have advised, and as you likely know, the best way for Redbubble to avoid IP litigation is to refuse to reinstate all works that are the subject of complaints,
Also known as “we’re not taking a moral stance, we have no issue with making money from trademark infringement as long as nobody complains about it”. It’s all very enlightened, I’m sure. And I’d expect no less from Redbubble, but again, that’s fine – I’m not shocked that businesses are in the business of making money. So I’m not having any huge problems so far

…and we have received notices from several content and publicity rights owners that have taken very aggressive stances against Redbubble reinstating any works at issue.
Aggressive stances, huh? So… harsh language rather than actual legal specifics? I’m just asking because I’d like to know. But presumably you didn’t reinstate my works, because that would have been hard and scary, and that is more vitally important than the issue of whether it’s right or wrong. And that’s why I uploaded alternative versions of two of the shots, made them not for sale, lower rez, untagged, untitled, and had that watermark thingy put on them like I always do. You can now officially get better photos by rightclicking internet thumbnails from search engines. So are we all happy now?

However, Redbubble respects the rights of its artists to express themselves in a non-infringing fashion,
Exactly. And that’s what I did – not for sale, nontagged, non-infringing, watermark protected. So we’re cool, right?

and is willing to support those rights to the extent it can do so without undue legal risk.
Which there aren’t, right? So … high fives all round.

With this in mind, the option of posting these images as not for sale is not a possibility at this time.
Wait. WHAT? WHAT???? WHY?

We will keep your details on hand and inform you if this changes in the future.
Nonononono… That’s not good enough. Putting this in your invisible filing cabinet is NOT acceptable. I want to know WHY. This is ALL about WHY.

If you would like to discuss this matter further, you can contact Bravado’s legal counsel (nb. I’ve removed his name, but they gave it to me) at KXXXXXXX@aol.com.
Wait. YOU make a decision, and I have to call somebody else’s lawyer to talk about your decision made not by them but by you? How the hell does that make sense? (Also… wait. the guy operates out of an AOL America Online email address? The LAWYER for LADY GAGA operates out of the early 2000’s equivalent of an unbranded GMAIL account???)

If you are able to obtain consent from Bravado to sell the designs at issue, we would be happy to discuss reinstating your listings at that time.
But I don’t want consent to SELL the designs, I am talking about DISPLAYING the designs. That’s not a question of permission, that’s a question of LAW. You’re not even addressing the crux of my issue, and it took you almost a month to reply!

Warm regards,…
And that’s it? Basically you could be saying “we’re doing Satan’s work so he doesn’t have to, so take it up with SATAN?” You obfuscated my issue by interchangeably referring to works that were NotForSale and For Sale? You DELETED my works off Redbubble without there even having been a takedown notice? No offence, Redbubble, but there is no way in the WORLD that I don’t read this as you saying to me “Go F**k Yourself” because that sure as hell is how I feel

So… you know. Awesome.

And you’ll notice what the email DIDN’T address : Redbubble actually removed the two works I put up, lower rez, untagged, untitled, and didn’t even tell me that they did it.

This is one of them:

And in addition to all my other complaints… this could be anybody wearing a mask.

So… my draft response to Redbubble for your consideration is as follows (feedback welcome):


Dear Redbubble

I’ve waited a bit over a week since receiving this to decide whether I’m still as disgusted (or maybe ‘left hollowed’) by your organisation’s response and behaviour as I was when I first received it. The answer is Yes. And I’ve decided that in essence you’re a bunch of unprincipled cowards.

When you don’t even need an authority figure to stand over you and you still behave like you do (specifically : removing works that weren’t even for sale and not even bothering to inform me), that’s when you cross a line to blind institutionalised compliance accompanied by a willing abandonment of free will and free thought. And you know what? Reprehensible though that might be, I can actually kind of forgive institutionalised cowardice and consent….

But there are two things I can’t forgive.

1. Hypocrisy. Do a search for “Disney” on Redbubble, please, and try to figure out even a fraction of how angry I am. You hypocrites are earning money from DMCA breaches every day (and yet, refer point 2 below). You have no moral highground here – you’re like crooked cops in movies – gleefully citing people for jaywalking and parking infringements with one hand, while accepting cash-filled brown paper bags with the other. And using words like “undue legal risk” to describe allowing DISNEY TRADEMARKED WORK on your site is an insane position to hold by the standards of ‘undue legal risk’ as you term it. And yet you’re doing it.

2. And now you’re removing my works without telling me. Where was the notification I’m meant to receive for you taking down my images, the ones called “not for sale or download” – photos of Lady Gaga and Brandon Flowers I posted most recently? Whenever Bravado demanded a removal, I got a takedown notice I could respond to. So I can only assume these were not removed at Bravado’s request, and you did this yourselves. Where was my notification? Can I assume then that you’ve become fully automonous lackeys operating with free will in cases of DMCA? (Because if so, refer also part above 1 : Hypocrisy)

To summarise : you removed photos that were not for sale, presumably because you felt like it, and didn’t inform me about it; and at the same time you purport to stand for artists…. while profiting from trademark infringement.

That’s pretty insulting, and there are words stronger than ‘insulting’ that might be used instead.

From your own IP Policy, it is written:

PUBLICITY RIGHTS protect an individual’s name, image and likeness. Basically this means you can’t use someone else’s identity, to your commercial advantage, without their consent.

And, just to re-clarify : the photos you removed? they were for not for sale.

THEY WERE NOT FOR SALE.

So where’s the commercial advantage? …. or perhaps you were talking about these images not being to YOUR commercial advantage?

LIKE THIS ONE?

This is not about Redbubble being besieged by circling sharks of lawyers. You could easily have said to anybody from Bravado (assuming there WAS anyone from Bravado) that as the latter images were not for sale they were fairly plainly not in contravention of Publicity Rights. But you didn’t. You could easily have used commonsense on your own turf and said “well, the image isn’t tagged, and it isn’t for sale, so since it couldn’t really be found by anybody even looking for it, Berndt2 has done everything possible to ensure all parties are not at undue risk of DMCA violation”, which given it took Bravado about four years to find my photos the first time around when they were tagged, might have been a fair call. But you didn’t. And finally you could easily have done the honourable thing and directly told me if it had removed my photos from Redbubble for ANY reason. But you didn’t.

You’re cowards. And you’re unethical. And you’re a disgrace.

So I guess this is the part where I can let you play the part of the angry parent, who knows they’re wrong, and can reach into their bag of logic and find nothing but the one remaining catch-all response of “While you live under my roof you will obey my rules” Can I safely assume that’s your argument? Then well done, you win. You win through fear and intimidation. Bravado. I mean Bravo.

Regards,

Bernd


Maybe you’re wondering why I’d write, or especially post this, given dissent from the allpowerful and almighty up on high will probably get me kicked out of the Redbuble playground?

Well, firstly, because I think if people are going to step all over you, and they’re bigger and tougher than you are, you either have to take it, or you’re going to have take it anyway but maybe land one good punch before the person opposing you does what they’re going to do anyway. If so, choose the latter. Because f**k it — if you make it easy for people to walk all over you by your silence, then they’ll just keep walking over you. Quiet compliance with a bunch of hypocritical goons isn’t the way to have less hypocrites and goons in your life – if anything you’re pretty much assuring you’ll get more of both. And that goes for me in my life as much as Redbubble.


Secondly, and other times, you do it just because you want to give The Powers That Be a chance to think about what they’re doing. Really think about it. Do they really want to go down this path that they’re headed down. Where they don’t even think about what they’re doing because they’re so insulated from the consequences that others’ silent compliance is taken as consent? I sometimes think you need give your oppressors a chance to stop for a second and maybe back away and reconsider how unstable their arguments are.

And you can’t do that with quiet compliance.


“I’m gonna give you three seconds to put down that gun and let me do my job. Or I’m going to make you shoot me” Our Hero Bruce Willis in Armageddon (1998)
Or fuck it, maybe I’ve watched a couple too many of the louder Michael Bay movies and I think to myself — “I’m actually genuinely interested to see if Redbubble as committed to their point of view as I am to mine”. Sometimes you don’t back down when somebody tougher than you points a gun at you. Sometimes you have to make them shoot you, so they can’t merely threaten you with it forever without even once seeing if they have the balls or stupidity to pull the trigger and reap the consequences. And that admittedly ridiculous metaphor works here, I think, because Redbubble doesn’t have a gun pointed at me. Redbubble have a limited set of tools at their disposal, and so far they’ve used only the one involving shameful cowardice, obfuscation and legal diversions, and sickly politeness. They have two, maybe three left. One involves a warning, one involves banning, and the other involves continuing to ignore everything and hoping it goes away.


I say to Redbubble: Why not Own your actions. Stand up for what you believe in. Be openly proud of it. You sell trademark infringing works on Redbubble and do nothing about it. You remove works, and don’t tell people you’ve done it. You make a decision and instead of allowing it to be challenged, you point at the third parties in whose name you do their bidding and say “take it up with them”.

Oh, and you also host some cool artworks. It’s true. There’s some great work out there. I just thought I’d mention that. It’s why I come here.

And finally, in answer to a question that might come up, I’m not one of those people who is going to leave Redbubble in protest just because I think some of their policies are misguided, silly, wrong, immoral, hypocritical or ill-conceived. I don’t hate Redbubble, I love Redbubble. And even if I intensely dislike where I think they’re heading in this regard, I still think there’s a chance that the tanks can be turned around. And on top of that I’d rather live in a better Redbubble than one where I sit back and do nothing and stuff like this keeps happening, or decisions get made with impunity and consent is implied for everything. I’d rather be exiled than leave or stay silent.

And what do I want? I want to be treated with some respect. To be informed about what’s going on with my works. To interface with people who will back their own calls and actually read my emails and respond to the points I’ve made rather than create some weird pastiche of “You’re awesome… and… .. but no. And don’t call us, take it up with the dark lord himself. Here’s his facebook page. Bye now”.. And to have some degree of… not courage… but logic involved in decision making.

And most important of all, No, no update on the girl from the other email.


“Fine. Let us see where this goes” – from Matrix Reloaded

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