UPDATED: Zazzle.com (and a little bit of the JRR Tolkien Estate) Can Go Fuck Themselves

Back in late 2009, I got into a Twitter conversation with Madeline Ashby about geek culture, fandom, and a bunch of stuff like that. Madeline wrote, “While you were reading Tolkien, I was watching Evangelion.” I thought this was an excellent encapsulation of the divide in SF/F/Whatever fandom, and thus took to Zazzle to make little buttons with her quote. I bought a bunch, handed them out at a few conventions, then I had a kid and promptly forgot all about it.

Until today, when Zazzle emailed me to say they were pulling the buttons for intellectual property right infringement.

And guess who complained about their rights being infringed?

I’ve tried to come up with something more to say about this, but I’m too angry and confused and tired to say anything more than I did in the title of this post. Have fun milking your dad’s stuff, Christopher Tolkien!

Photo on 2009-09-29 at 10.50

UPDATE 2/28/11: Zazzle just sent me this email:

Dear Adam,

This email is in regards to the deletion of your button entitled “While you were reading Tolkien,I was watching Eva”. After corresponding with representatives from the Tolkien Estate, it’s been brought to our attention that the design was removed inadvertently due to a miscommunication on our part. We are happy to inform you that your product has been restored and located here: [URL of old button].

We sincerely apologize for this error. If you would like for us to restore your account simply reply to this email so that we can send you a temporary password to access your account.

Again we apologize for any inconvenience, and thank you for being a seller at Zazzle.

Best,
Mike
Content Management,
Zazzle, Inc

So, everything’s as it was, right? We defeated the bad guys, threw The Ring into the fire without getting any digits bitten off, and we’re back in the Shire for a nice cuppa and sweet Hobbit lovin’ with Rosie, right?

Well, no. I’m going to remove the button from Zazzle; I realize they’re a business, and they have to protect themselves, but the way they handled this whole affair pissed me off. I had to dig to find out who had complained, and when I asked to see the actual complaint, Zazzle told me:

With regards to details of the infringement, all legal documents are confidential therefore I cannot release this undisclosed information. But we ask that you do acknowledge the fact that we were contacted by The J.R.R. Tolkien Estate, and at their request to prevent and remove any unauthorized and infringing third-party uses of their copyrights, trademarks and intellectual properties.

Oh, I’ll acknowledge nothing of the sort, bucko. And I’m also not going to do any business with you guys from now on. If I want this kind of shabby treatment, I’ll go to Fry’s.

I hope to make more of these buttons, and maybe a few others, too, though it’ll be a while before I attend another convention (the primary venue for buttons with zippy sayings), so it’ll be a while before I make more buttons.

Thanks to everyone who commented, especially if it was constructive. Thanks to everyone who posted this far and wide. And thanks to Studio Gainax for not being a bunch of dicks.

40 Comments

  1. GVDub
    2/23/2011

    That would call for a big fat Whisky Tango Foxtrot. I don’t even see quite how it qualifies as infringement, as Tolkien is a public figure. Does this mean he’s become the fantasist whose name we dare not utter? Pish and tosh, as my grandmother used to say, or suck my flabby white ass, Chris Tolkien, as I am wont to.

  2. 2/25/2011

    Normally I tend to give the JRRT estate the benefit of the doubt, since their vigorous protection of intellectual rights has prevented us from being flooded by awful “authorized sequels” like with Frank Herbert, but this… this is preposterous.

  3. Julian Macassey
    2/25/2011

    I’ll make your buttons. I have a machine.

  4. AngusM
    2/25/2011

    “Dragons steal gold and jewels, you know … and they guard the plunder as long as they live (which is practically forever, unless they are killed), and never enjoy a brass ring of it. Indeed, they hardly know a good bit of work from a bad, though they usually have a good notion of current market value; and they can’t make a thing for themselves …” [“The Hobbit”, J.R.R. Tolkien]

  5. Adam Rakunas
    2/25/2011

    Fired off an email to the EFF to see if they’d be interested in taking this up. It’s not about the buttons, it’s about the principle!

  6. 2/25/2011

    Go get ‘em Rak.

    Brilliant quote by AngusM, BTW. :)

  7. P
    2/25/2011

    Reading this made me very angry. Here’s what I can tell you (I am not a lawyer). The Tolkien estate has indeed registered “Tolkien” as a trademark. I assume that’s the intellectual property right they’re asserting to Zazzle. The relevant link is this: http://tess2.uspto.gov/bin/showfield?f=doc&state=4003:q4dg44.6.3

    That registration, however, does not give the estate an absolute right to control any use of the word “Tolkien.” In fact, there’s a big fat exception for parodic use as long as there is no “likelihood of confusion.” In this case, there is pretty much no chance that any consumer would think that J.R.R. Tolkien’s estate produced these buttons.

    Here’s an example: you know that song “Barbe Girl” by Aqua? Well, the word “Barbie” is obviously a trademark. But the song was equally obviously a parody, and there was no chance consumers would think the song was created by Mattel.

    You should not give in to bullies. The estate has no right to prevent you from making these buttons.

  8. nunya
    2/25/2011

    with the hobbit movies; i’ve lost what little respect i had for tolkien’s people. they vigorously guard the cash cow. i was saddened to see them not only “sell it” for “slaughter”; but sit @ the table w/peter jackson & help devour it

  9. […] work far greater publicity than it would ever have received otherwise. Alongside the inevitable blog coverage, there is now a new store on Zazzle offering a range of censored Tolkien merchandise […]

  10. TSK
    2/27/2011

    Of course, just for funzies, you could get in touch with the Tolkien Estate and tell them you were referencing Simon Tolkien (son of Christopher and a legitimate author in his own right) and intend to return the badge to production forthwith.
    If nothing else it’ll put the wind up them and cost them a stack working out how robust their trademark actually is.

  11. ButtonJunkies
    2/27/2011

    Zazzle SUCKS for buttons. I make 1.25″ full color, custom buttons for .30 each NOT $1.45 like them. If you want good buttons email me! and if you order 300 or more they’re just .25 each! buttonjunkies@gmail.com

  12. YK
    2/27/2011

    It is really a major problem with Zazzle.
    I am a team leader on a project at (Name of Major University Removed) and we created merchandise with our logo, which includes our project name: “Project at the University of Somewhere”.
    Zazzle emailed me to ask if we have permission to use the graphics and I replied that my team created them.
    Zazzle replied that we would need written permission from the University of Somewhere to use their name and they don’t understand that it is MY TEAM NAME and I am not pretending to represent the university.

    Oh well, no more business for Zazzle. There are plenty of other print-on-demand places who would love my high-volume orders.

  13. Kevin
    2/27/2011

    I too want the “estate” of JRR (who shot JRR?) to fuck right off, quiet right down and grow the hell up.

    I urge the boycott of all things idiotically “middle” until further notice.

  14. A Reader
    2/27/2011

    Nomanitive use is fully allowed. http://en.wikipedia.org/wiki/Nominative_use

    The estate must pursue real violations or risk losing the trademark, but this is not a real violation. Their lawyer could be sued.

  15. RedZebra
    2/27/2011

    AngusM, that’s a brilliant quote!

  16. Bobo Linq
    2/27/2011

    You should have no problem getting a trademark lawyer to represent you pro bono. (I’m a lawyer, but I can’t do it.)

    Try emailing Eugene Volokh at volokh@ucla.edu and asking him to post about this on his blog, http://www.volokh.com. Some law professor or lawyer will then surely come out of the woodwork to help you.

  17. Mike from Vashon
    2/27/2011

    First, before posting this blog entry, send a button to Chris Tolkein and ask him why said infringes whatever it is they think it does. Include a copy of the notice sent to Zazzle. (But not you?) They should be specific regarding what you infringe.

    Tell him what the phrase means, in the letter. He may not know what Evangelion is.

    Get the address from the agent or legal counsel via Zazzle.

    You should also look into responding to the notice.

    • Adam Rakunas
      2/27/2011

      Entry’s already posted, dude, or else you wouldn’t have read it.

  18. 2/27/2011

    This one is easy. Forget about your buttons. Next time coin a phrase that does not infringe on names such as Tolkien or Evangelion.

    • Adam Rakunas
      2/27/2011

      It’s Madeline’s phrase to coin, and she didn’t infringe on anything. Cultural critique is fair use.

    • Saganist
      2/27/2011

      … says Legend of Angband.

  19. JRT
    2/28/2011

    Why don’t you go fuck yourself up the ass you big hairy shitface.

    JRT

    ps. there is an afterlife

    • Adam Rakunas
      2/28/2011

      Looks like even the trolls are afraid of using The Name That Must Not Be Named.

  20. Stuart
    2/28/2011

    Please post a copy / scan / text of the correspondence, and try to get a copy of the communication that the Trollkien Estate sent to Zazzle. A plain text transcription will guarantee maximum coverage of this issue, and hopefully a massive new market in Trollkien merchandise that provides zero revenue to the Trollkien Estate.

  21. Talk Talk
    2/28/2011

    Someone needs to make a cartoon with Christopher Tolkien as Gollum talking about his Precious.

  22. 2/28/2011

    This is seriously ridiculous; it seems impossible that this would be a valid trademark claim (or at least, it shouldn’t be!). I’m hesitant to blame Christopher too much for it: he’s clearly instructed the Estate’s legal representatives to aggressively defend its assets, but I doubt that he’d approve of this sort of overreaching.

    As far as I can tell, Christopher’s purpose in that is less about money and more about trying to protect his father’s legacy as long as the legal system will allow it. He tried to use the issue of money and legal rights to block the Hobbit movie(s), after all, and my impression at the time was that blocking the new films was a more central goal than a big payout was. (A friend of mine who knows him tells me that Christopher was not at all happy with Peter Jackson’s LotR trilogy.)

    So yeah. I wonder if somehow getting word of this to him would solve the problem? Probably not: I assume he leaves legal decisions and details to the Estate’s legal staff. But maybe he’d be able to ask them to try harder to avoid this level of pointless nastiness, at least.

  23. Mary
    2/28/2011

    Writers are all about professional jealousy. If you all want to make money for yourselves by dissing Tolkien, why not find someone to pay you to write a full-on critique, instead of wanking?

      • Mary
        3/1/2011

        I think that’s a far better case to defend than this silly button.

      • Adam Rakunas
        3/1/2011

        This button is awesome, and I will defend it until I don’t care any more.

  24. Funkitron
    3/1/2011

    Black market Tolkien buttons ftw. Someone needs to sell these puppies again!

  25. Someone needs to remind C.T. that he cannot trademark a public figure, nor can he claim trademark on any word that is listed in the OED. In fact, maybe someone should give him an OED so he can learn what words his father used that were already in use, and therefore cannot be trademarked.

  26. Adam Rakunas
    3/1/2011

    I am now closing this post for comments, as it’s attracting less human attention and more content farm attention. If you’d like to continue discussing this, please go to the follow-up post, The Zazzle Emails.

    Except you, Mary, until you admit that this button is far from silly and is, in fact, awesome.

Comments are closed.