Does Amazon Sell Fakes?

Does Amazon sell fakes? You bet they do. Amazon allows the sale of counterfeit goods via their “third party sellers” and now the company itself prints, sells and ships counterfeit tee shirts via their Merch By Amazon program. I know this because, Inc. is currently selling my original design on two shirts and they refuse to remove them.     Part One – Deplorable Amazon Counterfeits 09-23-16

Original Deplorable Voter God Bless America refuses, IN WRITING, to remove these shirts and will continue to use my designs without authorization or a licensing agreement. The last email I received from the Amazon copyright office regarding my “Deplorable Voter God Bless America” design was dated Mon, Nov 14, 2016 3:14 pm and read as follows:

Thank you for your message. As previously stated, these items will not be removed from the catalog based on the information you provided. Unless you have other, different grounds for requesting their removal, we would ask that you no longer submit notices for these items.
Best Regards,
A– T–
Copyright/Trademark Agent

That’s right, the huge mega company Amazon just told the small business owner and independent artist to stop bothering them!

From September 17th when I sent the first DMCA take down notice until November 14th, I received several different and conflicting emails on the two shirts that are still up on Amazon. Two on 9/21 and 9/23 both read “Thank you for your message. The items you identified below share a simple phrase with the items you list. Short phrases are not covered by copyright, nor are ideas. As these items do not share artwork we do not believe there is a copyright claim here.” Well, that is correct, short phrases are not covered by copyright, that would be a TRADEMARK and I didn’t claim a trademark infringement. Duh. As to the lack of “artwork” I responded with a rather lengthy email 9/25, part of which read:

Since Amazon does receive a financial benefit directly attributable to the infringing activity, i.e. the shirt design reported is actually sold by via the Merch By Amazon program and Amazon is not simply a “service provider” in this instance, that is an additional factor in the loss of “Safe Harbor”.

In addition, the DMCA law does not allow for a service provider to act as an interpreter of copyright law or argue against a DMCA takedown notice. Nor does the law require the copyright holder to defend their copyright claim to the service provider with any additional information or the explanation of copyright laws. The copyright holder is required to file a written communication and notification of claimed infringement as outlined in § 512. Limitations on liability relating to material online, section (3) Elements of notification, and the service provider is to remove said infringement once notification is received.
However, on September 21st I received the one and only reply to all sixteen of my infringement notices from G– S— Copyright/Trademark Agent in which Mr. S— advised that “Short phrases are not covered by copyright, nor are ideas. As these items do not share artwork we do not believe there is a copyright claim here.” Mr. S— then directed me to’s circular 34 “Copyright Protection Not Available for Names, Titles, or Short Phrases” for additional information.
The copyright protections being claimed and the resulting infringements on have nothing to do with “short phrases or ideas” and while Mr. S— may not consider graphic design to be “artwork” and believes that only his definition of “artwork” receives protection under Title 17 Copyright Law, with all due respect, Mr. S— doesn’t work for the U.S. Copyright Office.
While the DMCA law does not require me to defend nor explain my claim of copyright infringement as initially communicated, I am happy to provide with the link to “Title 17 Copyright Law” and will include the pertinent information directly in this email:
§ 101 . Definitions
Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following:
A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.

§ 102 . Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(5) pictorial, graphic, and sculptural works;

§ 103 . Subject matter of copyright: Compilations and derivative works
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

In the language of copyright law, graphic design is properly described as a “compilation work” Section 101 Definitions. My graphic design was formed by the collection and assembly of certain letters from particular and differing fonts [preexisting materials] that I selected, coordinated and arranged, including the particular size and exact spacing of said letters and fonts, into an original work of authorship. This original work of authorship receives copyright protection under Section 102 Subject matter of copyright: In general [Subsection (5) pictorial, graphic, and sculptural works;] and Section 103 Subject matter of copyright: Compilations and derivative works “The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work”. My original and unique selection, coordination and arrangement of the preexisting material including the specific size, spacing and layout of said preexisting materials is the material contributed by the author, myself, that created what becomes the original work.

The email I received in reply could make a person laugh and cry – Sun, Sep 25, 2016 4:41 pm “We respect the intellectual property rights of others. We require that sellers on our site do the same. If you think that an item on our site infringes your intellectual property rights, please submit a complaint using our online form.” So on the 27th of September I replied:

The law requires that I provide written communication of the copyright infringement, which I did via email on September 17, 2016, and is located at the bottom of this message. The law does not require that I use Amazon’s online complaint form.

Now, every time I sent a failure to comply notice on these shirts, I included a CC: to Jeff Bezos, the National Intellectual Property Rights Coordination Center, the FBI Intellectual Property Theft email, and the contact for the Merch By Amazon sellers program. This time, while the copyright office of Amazon ignored me, the Merch By Amazon office sent a reply: Tue, Sep 27, 2016 8:55 am “We have noticed you contacted us several times regarding to infringement reports. Protecting intellectual property rights is important to us and we are here to assist you prior to your inquires. In order to continue process and forward your report promptly, please kindly send us emails with text only. It seems your request contains HTLM and it sometimes slows down our process. We appreciate your corporations and understanding in this matter. If you have any further questions, please feel free to contact us! Best regards, K— Merch by Amazon Support”

My email contains HTML? It’s slowing down the process? You’re kidding me. Are you noticing the pattern? Deny, ignore, deflect, obstruct and obfuscate. That is, Inc.’s pattern for dealing with intellectual property theft BY THEIR OWN COMPANY. I sent several more emails before the November 14th response that basically told me to shut up. I never did respond again. I cannot take the chance that Amazon would block my email or something as I need to be able to report future thefts of my artwork and designs that continue to populate their site both by third party sellers and by the Merch By Amazon program. In their subtle way, has bullied me into halting further action regarding the two shirts still being sold on the Amazon site.

The good news is that out of the sixteen shirts I originally reported on September 17, 2016, two were removed in mid-September and the remaining twelve were confirmed as gone from the site as of November 14th. Having said that, the Amazon Merchandise program recently implemented a new standard whereby if a shirt design uploaded by a MBA seller does not sell within 60 days, it is removed from the site. So the twelve that were confirmed as no longer live on Amazon 11/14/16 most probably were dropped due to no sales. That means the two that remain HAVE sold, so there is the proof that the Merch By Amazon seller who stole my design and, who is physically manufacturing i.e. printing the shirts, are directly profiting from the use of my graphic design WITHOUT MY PERMISSION. I have the evidence, the screen shots and all the emails.

One day Amazon will rue the day they decided to be judge, jury and executioner when it comes to the illegal use of the copyrights of others; they will RUE the day!

Deplorable Amazon Counterfeits

On the night of September 12th, while my dinner was in the oven, I created two original designs for tee shirts that were inspired by Hillary Clinton’s “Basket Of Deplorables” remarks. Counterfeiters quickly stole them and began selling them via the Merch By Amazon program, where t-shirts are printed by and sold by Amazon refuses to comply with my repeated DMCA notices; they must be making a fortune off of my designs and want the cash to continue to flow.

Hillary made her comment on Friday, I did a text only design on Saturday to sell in my Zazzle shop in blue font PROUD DEPLORABLE TRUMP SUPPORTER HAND ME MY BASKET and then Sunday was the 15th anniversary of 9/11. I typically spend that day watching the History Channel and remembering. Now it was Monday evening and I had forgotten to do something for my Redbubble store. With my hamburger drying out in the oven, I created two graphic designs using text only, which is rare for me. The first was DEPLORABLE AMERICAN and the second was DEPLORABLE VOTER GOD BLESS AMERICA, both in plain white for dark tees. At this point I had turned off the oven and my dinner was not only well done but also growing cold as I carefully tried out different fonts, spacing and layout to turn plain words into visually interesting designs. I cleaned up the edges of each letter, set the background to transparent and got them uploaded to Redbubble on shirts only. I was hungry so I slathered the cold, dry burger with extra ketchup and vowed to do the sticker and mug variations in the morning.

Bright and early on Tuesday, September 13th, I checked my Redubble account and had already sold one of each shirt! That was good news. I finished the work on the stickers and mugs, got the designs set on additional products and then did the red, white and blue versions of both DEPLORABLE AMERICAN and DEPLORABLE VOTER GOD BLESS AMERICA. I had originally planned on just changing them to full black for light backgrounds but I was feeling inspired. Perhaps I should have gone with the first idea since I have not sold either of the red, white and blue versions. Then I created the STRONGER TOGETHER parody design which lists all the excluded groups. It was a little boxy but I had to move on to the idea that had popped into my head around noon: TRUMP AND THE DEPLORABLES THE IRREDEEMABLE WORLD TOUR 2016. The whole thing was perfect for a fake band and tour and I was tickled with it. In my head I kept thanking Hillary for #basketofdeplorables because I was having too much fun.

The two original shirts were picking up sales all day and I was very pleased. I got the new designs up in my Redbubble shop and called it a night. Wednesday morning showed me a massive amount of sales for the original shirts were rolling in. I spent the day creating new versions for my Zazzle store. I like to keep my designs exclusive to just one site so if I want to sell it in another shop I will change it up some. I used a faux gold background and masking techniques to create a faux metallic DEPLORABLE AMERICAN design for Zazzle. Since Zazzle’s platform allows for customer personalization, I added text to the men’s version so it read DEPLORABLE AMERICAN PATRIOT and on the ladies shirt, DEPLORABLE AMERICAN MOM. Then I used the same masking over faux silver for a fresh take on DEPLORABLE VOTER GOD BLESS AMERICA only this time I only used DEPLORABLE VOTER with God Bless America added as a text template so customers can change it if they wish. Finally I did a faux gold and silver version of TRUMP AND THE DEPLORABLES THE IRREDEEMABLE WORLD TOUR 2016 exclusively for my Zazzle store.

On Thursday I got back to working on some Christmas designs until yet another Deplorable idea popped into my head which resulted in yet another text only graphic design DOES THIS VOTE MAKE ME LOOK DEPLORABLE?. Sales of the original two shirts were still selling well on Redbubble and I was feeling great.

Friday, September 16th the shirt sales had slowed down a bit. I checked the Redbubble marketplace to see where I was ranking and was horrified to find three separate rip-offs of my DEPLORABLE VOTER GOD BLESS AMERICA design posted by other Bubblers. It was blatant copyright theft of my design image with identical fonts, spacing and layout. I filed DMCA notices for all three shirts with Redbubble’s copyright office and the shirts were immediately removed from the site. It was my first time dealing with the copyright folks at Redbubble and I cannot sing their praises enough. Since then I have found and reported eight infringements in the Redbubble marketplace and the RB team has promptly taken care of the matter.

But the shirt sales were still slowing. Now it could have been that the Basket of Deplorables frenzy was over in less than a week or perhaps it was simply market saturation. The second would make sense since when I first posted my designs on Monday the 12th there were only 20 or 40 designs coming up when I searched RB for “deplorable” and by Saturday morning it was 400 or 500 results. Then a horrifying thought came to me… AMAZON! If you are a regular visitor to my blog and website you know I have been fighting fake products and design theft on for the past year. It’s a struggle. But surely the Chinese counterfeiters hadn’t had the chance to scrape the web for Deplorable designs yet, had they?

So there I was on Saturday afternoon, with a pit in my stomach, searching for DEPLORABLE and scrolling through page after page of tee shirts. There were 131 pages and I got through 81 before stopping for dinner. I found five separate listings with my original DEPLORABLE AMERICAN design and eleven for the original DEPLORABLE VOTER GOD BLESS AMERICA design. My shirts list for $25.84 on Redbubble while some of the fakes on were listed at $11.99! No wonder my sales trickled to a halt if folks can get a counterfeit version on Amazon for 46% less. I took screen shots, copied ASIN numbers and page links and filed sixteen individual DMCA take down requests via email to Amazon’s copyright office and shut down the computer for the night.

Sunday morning my inbox showed two, just two, automated “we received your email we will be in touch” replies from Amazon. I was pretty angry about the multiple thefts of my designs but it was the weekend so I figured I would give them until Monday. So I checked the final pages 82 through now 136 then started work on the last of my Deplorable designs, this time in the form of a “family crest” because when ideas come into my head, the best thing to do is just let them run free.

A side note: It was around Sunday that I ventured over to the Merch By Amazon forum to read and get a feel for the atmosphere. A fellow designer has been very happy with his success since receiving an invitation to Merch By Amazon. When he again gleefully shared the number of shirts he sells daily at MBA while I was quietly lamenting the sudden slowdown of my successful Deplorable designs and how much money I was losing, I began to ponder submitting my information to Amazon to request an invitation to sell there. I know! But a girl’s gotta eat and you know what they say about keep your friends close but your enemies closer. Having an account at Merch By Amazon would be pretty close! No, I don’t really consider Amazon to be my enemy – I still shop there sometimes – but they sure are a tough opponent when it comes to copyright infringements on their site. Okay, why did I just tell you about this Merch pondering? Because one can learn a lot by reading and the information I picked up from Sunday onward about MBA proved extremely helpful regarding the sixteen infringements I reported.

Now it’s Monday morning September 19th, exactly one week since the original DEPLORABLE AMERICAN and DEPLORABLE VOTER GOD BLESS AMERICA designs were available on Redbubble. The shirt sales of both have slowed to barely a crawl. Amazon still hasn’t replied to the sixteen infringement reports but I’m fair, even when angry, so I give them the first day back in the office to sort things out. I worked on other things and read a little more over at the Merch By Amazon forum. I’m drinking it all in, weighing my options.

Tuesday morning arrives bright and early yet still nothing from Amazon’s copyright office. Like I said, they are a tough adversary but rarely do they full out ignore my notices like this. I send a Failure To Comply notice for each infringement, adding some rather strong CC’s. My anger made me add a little extra note in each email: “Exactly what do you do with the listing fees and percentage of sales fees you collect from third party sellers prior to items being removed for copyright infringement?” See, at this point I’m still working on the believe that these shirts are being sold by third party sellers, although the seller/brand names were particularly kooky and I’ve seen some off the wall Amazon seller names.

Wednesday morning – two auto-reply “thanks for emailing us” replies from Amazon, nothing else. What the heck? Why would they be ignoring me like this? It’s certainly not good for them. Complying with a DMCA notice is not a suggestion, it’s the law. Unless… Oh. My. God. I start Googling furiously.

I found this gentleman’s blog which gave me three things to look for to identify an item on as being Merch By Amazon. I found another site that explained how a MBA account holder can put anything they want in the “brand name” space and it’s suggested to use key words and such for the design instead. That explains how all the “deplorable voter #basketofdeplorables” etc. stores suddenly sprang up so fast; they are actually key words being used by Merch By Amazon accounts. There was one more blog that pointed out how it’s impossible to identify a particular MBA account holder “because all items show as ships from and sold by instead of a store or brand.” Continue reading