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 Amazon.com, Inc. is currently selling my original design on two shirts and they refuse to remove them. Part One – Deplorable Amazon Counterfeits 09-23-16
Amazon.com 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.
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 Amazon.com 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 copyright.gov’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 Amazon.com 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 Amazon.com with the link to “Title 17 Copyright Law” http://www.copyright.gov/title17/92chap1.html 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 Amazon.com, 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, Amazon.com 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 Amazon.com, 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!