Notice & Staydown In Action: HBO Didn't Even Need To Send Takedown Over Autistic Teen's Artwork

from the bursting-your-bubble dept

Things just got a little more weird in the case of the 13 year old British girl who had some art she created taken down from Redbubble's site because the artwork included the phrase "winter is coming." The girl's father responded to the takedown, questioning why HBO, owners of the trademark rights to the phrase in conjunction with the Game of Thrones franchise, would do this to an autistic teenager that wasn't even selling the art, only sharing it. As noted in our original post, the letter Redbubble sent the girl is a mess, lacking any firm reference to trademark or copyright and replacing it only with "IP/Publicity Rights." In addition, the whole letter is written like a forwarded DMCA notice, including offering the ability to counternotice through Redbubble's DMCA counternotice email address... but this would be a trademark issue, to which the DMCA doesn't apply. Lots of people, including the girl's father, assumed this takedown had been carried out at the request of HBO.

It looks like that wasn't the case. What the girl's father missed -- along with many of those reporting on the issue, including myself -- is that Redbubble's letter states that they did this because of HBO's history of issuing DMCA notices, not because it had actually done so in this case.

"We have removed the following content from Redbubble in response to past complaints from Home Box Office, Inc., the claimed owner or licensee of related intellectual property and in accordance with Redbubble's IP/Publicity Rights Policy," it said.

So this wasn't "notice and takedown", it was "notice and staydown", where Redbubble policed HBO intellectual property on its site based on previous complaints. That's not required by law, of course, but it certainly is what many in Hollywood want to see as the standard. And this is a perfect case for why it's a terrible, terrible idea. Legitimate, non-infringing uses get caught up in the blanket takedowns issued by service providers that don't really have a clue as to what they're doing.

And in light of what actually happened, Redbubble's letter, and the way it appears to be disguised as a DMCA notice, is at best horrifically sloppy and at worst an attempt to shift the blame for its voluntary and proactive takedown of a teenage girl's artwork. For it's part, HBO doesn't seem to be happy about this.

"We love when fans are creative in their support of our programmes," the network said in a statement (via Entertainment Weekly). "These works live online in many incarnations, and in the past we have celebrated them by drawing attention to them.

"Many for-profit websites that sell products, such as Redbubble, take steps to avoid infringements as part of their standard operating procedure. To suggest a particular individual was targeted, or that HBO threatened legal action against her, is simply untrue."

Now, HBO's history of how it treats fans of Game of Thrones isn't universally positive, and it's worth noting again that the stated reason Redbubble did all of this is because of the network's heavy-handed history when it comes to matters just like this...but I have to think HBO is also pissed off at the way Redbubble's communication with the girl's father allowed him -- and the media -- to conclude this was all HBO's fault for issuing a DMCA takedown.

Regardless, good to know that Redbubble wants to be in the business of proactively policing its site in such a way that it results in the non-infringing artwork of a teenager gets taken down. The site is a notice and staydown site, on the record.


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  • icon
    Anonymous Anonymous Coward (profile), 16 Dec 2016 @ 9:20am

    Assumptions

    "We love when fans are creative in their support of our programmes,"

    This assumes that the teenager has seen Game of Thrones. Is that a legitimate assumption?

    This assumes that the title was in reference to Game of Thrones. Is that a legitimate assumption?

    This assumes that EVERY reference to 'Winter is Coming' is in reference to Game of Thrones. Is that a legitimate assumption?

    I am going to assume that HBO is supremely arrogant in their assumptions. Is that a legitimate assumption?

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 16 Dec 2016 @ 9:46am

      Re: Assumptions

      From the original article, it doesn't appear that "Winter is Coming" was a Game of Thrones reference.

      There's an old joke about Winnipeg, predating Game of Thrones by decades, that it has two seasons:

      • Winter is coming
      • Winter is HERE

      Now your web site can be taken down for repeating it. Nice.

      This joins "Let's roll", "Nothing but net" and many other common phrases stolen by copyright.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Dec 2016 @ 9:58am

        Re: Re: Assumptions

        This joins "Let's roll", "Nothing but net" and many other common phrases stolen by copyright.

        Trademark, not copyright. I know they formatted it like a DMCA takedown which would ordinarily indicate copyright, but that's just because they're dumb and/or lazy.

        I'd say the phrases weren't really stolen, since you can still legally use them... but since this actually got taken down despite being legal, it almost doesn't matter what the law says.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Dec 2016 @ 9:48am

    This looks like a suicidal police, as there are enough titles and trademarks belonging to corporations that they will soon be identifying everything as infringing.,

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 16 Dec 2016 @ 9:59am

      Re:

      My thoughts. I wonder who was the enlightened idiot that thought trademarking "The winter is coming..." phrase is sane. Imagine if there's [insert creative work type here] that needs to state that the season is coming. How in the freaking hell is the creator supposed to say this without mentioning the phrase? "The-season-that-shall-not-be-named-but-is-really-cold is coming..."

      Then Rowling would have a problem.

      reply to this | link to this | view in chronology ]

  • icon
    Vidiot (profile), 16 Dec 2016 @ 10:04am

    So many questions

    Makes you wonder where the notion of a potential infringement originated. Does Redbubble subscribe to some sort of text-searching keyword list? One that's capable of reading hand-drawn artwork? Or is there a staffer (or subcontractor) scanning submissions... one whose own GoT familiarity made them target that phrase, rather than simply accepting its plain-language meaning? Unless the teen's drawing depicted scenes clearly inspired by GoT, why would someone draw that association? "Winter is coming"... sounds like ad copy for a sale on skis and parkas...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Dec 2016 @ 10:10am

    W1nt3r 1s C0m1ng

    Retaliation is delicious: take down *every* post/article with the phrase "is coming" as pornography. Include "is coming" in the new UK ISP porn discriminators. End of GoT franchise.

    reply to this | link to this | view in chronology ]

  • identicon
    @blamer on twitter, 16 Dec 2016 @ 10:46am

    Here is the DCMA Letter (in full)

    "Redbubble is an Australian online marketplace for print on demand products based on user submitted artwork. The company was founded in 2006 in Melbourne." Wikipedia.

    Redbubble Content Team
    Thu 17/12/2015 10:10 AM
    Inbox
    To:
    xxxxxx@xxxxxxx.com;
    Dear xxx,

    We have removed the following content from Redbubble in response to past complaints from Lucasfilms, Ltd., a subsidiary of The Walt Disney Company, the claimed owner or licensee of related intellectual property and in accordance with Redbubble's IP/Publicity Rights Policy:


    http://www.redbubble.com/works/show/xxxxxxxxx

    If you believe that removal of the above content is the result of a mistake (for example, that you have authorization to use the relevant content from the content owner) or misidentification, you can send us a counter notice. Such counter notice must provide the following information:

    an electronic or physical signature of the person authorized to act on behalf of the owner of the relevant matter;

    a description of the content which we have removed, including the URL on which the content was located on the Redbubble site;

    your address, telephone number, and email address;

    a statement by you that you consent to the jurisdiction of the Federal District Court, San Francisco County, California, United States and that you will accept service of process from the person who provided notification described above or an agent of such person;

    a statement by you that, under penalty of perjury, you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

    If you would like to send a counter notice please email the required information above to dmca@redbubble.com.

    Please note that in some circumstances, if the work does not comply with our User Agreement and/or IP/Publicity Rights Policy, we may not be able to send your counter notice on to the party who has claimed ownership or licensee status over the intellectual property at issue. Rather, we may inform you at the time of receipt that we cannot reinstate the work. We may also request further information from you in order to determine whether the work can be reinstated.

    However, you should be aware that in some circumstances we will inform the above mentioned third party that you have provided a counter notice, as well as provide this party with a copy of your counter notice, which will include your personal contact information. This party will have 14 days to bring legal action against you in the United States. After 14 days, if they do not bring legal action and you would like your content restored to the Redbubble site, you may contact us to request that we reinstate your work. Redbubble may restore the content at that time if it otherwise complies with our User Agreement and IP/Publicity Rights Policy.

    Further information regarding Redbubble's IP/Publicity Rights Policy and User Agreement can be found here:

    https://help.redbubble.com/hc/en-us/articles/201579195

    http://www.redbubble.com/agreement

    Regards ,

    Redbubble Content Team

    reply to this | link to this | view in chronology ]

    • icon
      Eldakka (profile), 17 Dec 2016 @ 9:04pm

      Re: Here is the DCMA Letter (in full)

      Here is the DCMA Letter

      Thanks for posting the letter in full.

      However, not to be pedantic (which means I am about to be) , and IANAL, but it is not, and cannot be, a DMCA letter, for several reasons:

      1) Redbubble is not the owner or legal representative of the copyright holder, therefore they cannot submit a DMCA notice;

      2) Redbubble is an Australian Company, whereas the DMCA is a United States law. So, since Redbubble is the issuer of the 'notice' to itself basically, it can't be a DMCA notice because US law does not apply (that is not to say a US entity couldn't submit a DMCA notice to Redbubble - in which case Redbubble is under no legal obligation to comply, or that Redbubble couldn't submit a DMCA notice of it's own copyrighted content to a US-based hosting service, because in either if these cases one party is subject to US law, but in this case neither party is subject to US law, therefore it can't be a DMCA notice).

      There may be others, but I'm pretty sure any claim by Redbubble that this is a DMCA notice would be some sort of fraud.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Dec 2016 @ 11:04am

        Re: Re: Here is the DCMA Letter (in full)

        in which case Redbubble is under no legal obligation to comply,

        Ask Kim Dotcom about the US attitude about its laws applying to foreigners.

        reply to this | link to this | view in chronology ]

  • icon
    wereisjessicahyde (profile), 16 Dec 2016 @ 11:16am

    Conclusion jumping

    Obvious really if you bother to read the letter properly.

    It says "..in response to PAST complaints.." Quite clear HBO hadn't sent a specific notice to an Autistic girl. They wouldn't have known it was an autistic girl anyway, even if they had.

    reply to this | link to this | view in chronology ]

  • icon
    RonKaminsky (profile), 16 Dec 2016 @ 11:31am

    Chilling effect

    Ah, the obvious chilling effect of "winter is coming"...

    Good thing that George R. R. Martin didn't imagine a desert world for his story... without that chilling effect, how could he have possibly made any money?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Dec 2016 @ 12:23pm

    Winter is coming? Trademark on three words? I had better learn a few more languages, you Yanks can burn in hell for all we care. Next time say Winter Solstice is coming, or does HBO own those words too? It will be here December 21, 2016, and occur yearly from then on, until the end of days. What did it cost for HBO to remove these three words from our vocabularies? Must admit, I have never seen the show. But some people can afford the justice system in the states, the rest can hang.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Dec 2016 @ 12:50pm

      Re:

      Of course you can have a trademark on three words. You could have a trademark on two words: "Burger King". You could have a trademark on one word: "Target". Once again: the problem is not with the trademark, it's with the brain-dead way something noncommercial was taken down.

      reply to this | link to this | view in chronology ]

      • icon
        Eldakka (profile), 17 Dec 2016 @ 9:10pm

        Re: Re:

        it's with the brain-dead way something noncommercial was taken down.

        I'd phrase it as "non-infringing" rather than non-commercial. Something can be both commercial and non-infringing, e.g.:

        when we compare our product, the super-gee-whiz hamburger-orgasm, with our main competitor's product, McDonald's(tm) Big Mac(tm), we think our product is better.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Dec 2016 @ 8:50am

          Re: Re: Re:

          You could phrase it that way, but may way isn't wrong either. Noncommercial means it isn't even a close call as to whether it's noninfringing.

          reply to this | link to this | view in chronology ]

  • identicon
    Job, 17 Dec 2016 @ 7:58pm

    What artwork?

    Come on. Where are we talking about ? You can just sell art if that is the goal. Because winter is coming ? What nonsense is that. I do not see the construction here that relates to the legality of it being the reason. Or is this one of those ways to explain something completely different ? If it would be against the girls will that it be put up, it would make sense. I really do not understand this.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Dec 2016 @ 2:57am

    Just leaving this here:

    Using a DMCA takedown notice to assert a trademark claim may lead to section 512(f) liability

    http://www.lexology.com/library/detail.aspx?g=13f9814f-b56e-4314-8e1b-95215ce60a6d

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 19 Dec 2016 @ 10:35am

    There are plenty of other print-on-demand sites

    Such as etsy, cafepress, Zazzle, shutterfly, and more.
    Redbubble might want to think about these sites before pro-actively taking down content because it thinks someone might object to something.

    And, yes, I'm sure none of these other sites would care about a drawing that said "winter is coming" with no connection to Game of Thrones. And if they did care, they'd probably ask for more proof of ownership than simply "it's a phrase from the show".

    reply to this | link to this | view in chronology ]


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