Copyright Infringement w.r.t. Custom Printed Items

Custom Printed Items are a rising fad widely popular amongst all generations of people. The booming business accumulates high profits as well as customer satisfaction. Whether it be a pixelated image of a Harley Davidson on a t-shirt, or a famous scene from the infamous Harry Potter franchise on a mug, Print on Demand does seem to be fulfilling all requests. But what exactly is Print on Demand you may ask? The process of Print on Demand allows a creator to collaborate with a supplier for the creation of customized products. These products are then sold on an order-to-order basis under the creator’s brand. The precondition of an inventory or prerequisite of mass buying gets negated on the part of the creator. Print on Demand has also proven to be a hassle free method of selling one’s creations as the responsibility of printing the product as well as shipping it falls on the supplier. So, apart from his/her artistic prowess and a few taps, the creator needs nothing more than to have his/her handwork delivered to the customer’s doorstep. Popular Print on Demand products include mugs, notebooks, t-shirts, hoodies, phone covers, stationery etc.

Digital Printing is a more newfangled form of printing that is widely being used for Custom Printing. The picture, design or art undergoes processing by a computer after which it gets directly printed onto the surface of the item. As opposed to screen printing, digital printing produces more detailed results that are definite, brighter and much more meticulous.

How is Copyright Infringement Taking Place?

The basic allowance by Print on Demand companies to the creators – to be able to upload any design or picture for the purpose of their business – is giving rise to copyright infringement. The numbers of such violations are skyrocketing, amounting to almost millions, thus making the scope of prevention inconceivable. Print on Demand companies have lightened the load on the creators by providing them with web stores making it easier for them to carry out their work. Certain platforms have allowed the creators to use web pages under unique domain names and allowed them to harmonize with Shopify, thus simplifying the process. Their generosity has also extended to Marketing, Customer Service, Production and Shipping.

The taglines displayed on their websites deceive the customers into believing that the products sold are original artistic and inspired creations, all the while veiling their source of majority sales which rests upon the foundation of counterfeit items. These sites have no monitoring systems for the thousands of uploads made by their users on a daily basis. The users are at a liberty to upload whatever design, picture or logo they wish. They take up no responsibility to review what is being put forth for sale and it is only when someone claims an infringement with respect to their image or word, do they look into the matter of contention.

Print on Demand Companies

The upsurge in digital printing showed the emergence of one of the first Print on Demand companies `Café Press´ launched in 1999. Digital printing that mustered profit even with the lack of bulk orders had created quite an uproar. Zazzle, another such venture three years after its launch was awarded the title of the `Best Business Model´. This was followed by the entry of other such Companies namely Redbubble, TeeChip, TeePublic, and SunFrog into the multibillion dollar arena. Redbubble’s revenue in a particular year amounted to $328 million, SunFrog generated $150 million in its peak year and Zazzle’s amounted to $250 million in 2015. The industry has been thriving all the while overlooking the damages caused to owners of the copyright through reckless uploads made by their users.

The Digital Millennium Copyright Act for many years has provided Online Service Providers a safety net when the question of copyright infringement with respect to the activities of their users was raised. They were left unscathed in matters where their users were infringing upon someone’s copyright. But the dilemma arose when these websites not only allowed their users to upload such infringing material onto their website but when they actively began assisting in turning this virtual reality into a physical one, i.e., they began creating physical products from the material uploaded by the users. This is when their physical participation in the infringement was acknowledged. In 2016 June, Zazzle was sued by Greg Young Publishing[1] who produced art which was themed on the California beach, he alleged that 41 of his paintings had been uploaded onto the website without his permission and were on display for the public at large. To make matters worse Zazzle had created physical items bearing images of his paintings and was earning revenue by selling them, all the while without Greg’s knowledge or permission. Zazzle sought refuge under the provision of the Digital Millennium Copyright Act which protected such online service providers.

There was a requirement of fulfillment of three criteria’s to acquire the benefit of such a safety net- (1) Zazzle had to qualify as a service provider, (2) Zazzle should have been ignorant or unaware that its users had committed infringement, (3) Zazzle should not have received any monetary benefit from the infringing acts that were within its power to control. The judgment was not in favour of Zazzle, the Court held that Zazzle’s participation was not limited to merely showcasing infringing images, it was not a mere platform where users could sell infringing items. The authority to regulate such activities was in Zazzle’s power not just by preventing the uploading of such images but also by preventing production of products having those images. Zazzle itself printed the material which takes away its protection as it indulged in the infringing activity.[2]  Thus it was not able to escape liability for its actions and this was a landmark judgement for all such platforms that despite taking down of infringing material which makes its way to its website as long as digital files are being used to create merchandize the protections under the Digital millennium Copyright Act will not be awarded.

Ways to Approach the Problem

A lot of sites have taken up remedial measures to deal with the quandary. Many have set up portals for the Copyright holders to drop in their notices; users are being educated on the risks of uploading infringing material, image recognition software is being used to eliminate such threats at the onset, though it has not proven to be as effective owing to the lack of software which can recognize all files uploaded. It is selective in its approach and fails in filtering a lot of damaging content. Users of these print on demand companies should be encouraged to create their own original designs using graphic designing tools. They should also be made aware of free stock photo options provided on various sites as well as the ones that can be purchased depending on their preference.[3] It is always safer to assume that there exists a copyright in relation to the work in question, even if there is no explicit reason to believe so. The users who are still in dire need of using another person’s original work should contact the owner of such copyright and take their permission before publicly using it. This diminishes the chances of unwarranted litigation.

[1] Greg Young Publishing, Inc. v. Zazzle, Inc., No. 18-55522 (9th Cir. Nov. 20, 2019)

[2] Eric Goldman, More Evidence That Print-on-Demand Vendors May Be Doomed, Technology and Marketing Law Blog, accessed on (10th May, 2020)

[3] Danielle Prager, A Guide to Online Images Copyright and Fair Use Laws, Rival IQ, accessed on (10th May, 2020)

Gursimran Kaur from KIIT School of Law

You can find her here.

Editor: Sanskriti Sood

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