Every so often we get a design submitted to our platform with the image or likeness of someone. Sometimes it’s a photo, but mostly we get a graphics design. Unfortunately, we are almost always forced to reject these designs – and we notice that many of our partners don’t really understand why we have to do this.
This topic can get pretty complex, but I am going to try and explain with two examples. The first is a classic: uploading a picture of a friend/loved one. The second is a hot topic in current events: Julian Assange’s image or likeness. Let’s begin with the latter.
The Activist
You most likely know the story behind Julian Assange and Wikileaks. Our platform became involved in this story, like with many current events, when our users and partners wanted to support the cause by uploading designs related to Assange and Wikileaks.
That certainly deserves some praise, first because we love active users who want to express their opinion. And second, it shows that our partners react quickly and creatively to current events. Unfortunately we had to put the brakes on our partners and their creativity because there are some legal limits for these kind of designs. According to German law (which we have to follow because we are based there), the image or likeness of individuals can only be published and sold if that person in the image provides their consent. This is also relevant for individuals who are part of contemporary history.
What is not relevant in this particular situation is the oft quoted artistic freedom. However, artistic freedom is not really applicable when you include the commercial sale of this design. This is because it has nothing to do with publishing for the sake of informing the general public (newspapers, media), nor with bringing people closer to art, (museums or galleries). Selling the design through Spreadshirt is a clear cut commercial exploitation use of this person or his/her likeness.
The Lover
If you really love someone so much and think they beautiful, then you might want to even show such beauty to the world. We understand that desire, of course. But, this too must be held back. If John Doe uploads a photo of Jane, we have to be sure that Jane is okay with that. Once we have her approval, John will be able to publish a product with that photo and sell it.
But – and there’s always a but – this consent is not unlimited. When people break up, some try to express their pain and anger with not-very-nice designs. Jane’s personal rights also protect her from defamation. Since it is hard to imagine that she would want to be used in such designs, we reject such designs. For her protection.
A few small things to remember
We are a commercial company that makes products. Even though both we and our partners know that there is more to Spreadshirt than simply a t-shirt printer, we also have to make sure that we play by the rules for the commercial use and sale of images.
This is not only applicable for the use of designs in shops and on the Marketplace, but also for single orders. The designs from single orders (e.g. in the T-Shirt Designer) are given to us by the customer so that we can use them. Since this is how we make our money, these designs are commercially used within our production process. And that means that they fall under the same rules as designs in shops and on the Marketplace.
Summary
In the case of Julian Assange, we were really sorry that our users and partners weren’t able to add their designs to our platform in order to earn money (commercial use) to financially support Wikileaks and Assange himself. But, luckily that’s not the end of the story, because now everyone has the chance to support the organization on the official Wikileaks shop.
Accordingly, and with the explicit request from Wikileaks, we had to remove other designs which we activated, as those users claimed to have authorization. It seems no one at Wikileaks knew anything about those designs.
*Just a reminder: this post focuses on German law, applicable in the EU and UK.
Hi Ami
Sorry about the multiple submissions, but Im on a mac with safari and Im not always seeing the “awaiting moderation box”.
Its not to sound overly angry – You guys are doing a great job on so many levels. I dont have any personal experience with designs being rejected due to legal issues, but I do find the overall theme of this topic very cool and was hoping that some of our other spreadshirt’ers would join in on the debate 😉
Im generally concerned about what I see as a paradigm shift in user rights on the internet. Its nothing new making a profit on personal opinions – its done daily in books, theater, tv, movies, interviews and so on. A guy can go on Oprah and express criticism towards Coca Cola, but if you make a white-on-red t-shirt with the same criticism your company would receive a Cease and Desist order within the week. Oprah makes millions on a 1 hour platform of opinions, its unlikely the Coca Cola t-shirt would make us more money than that. So there is a – from my perspective – unfair difference in what you can print on clothing and what you can do elsewhere. From my point of view that freedom of speech should be divided much more equally.
Of course everyone needs to follow the law, but in a time and age where trademark and ip-lawyers are booming big time I think its also our responsibility to criticize and try to alter legislation where we have an opportunity. You at Spreadshirt have become such a big player – Im not gonna go all Spiderman on you, but with great power comes great responsibility 🙂 So if you could strike a blow for less lawyering-up I’m sure most users would enjoy it.
Thanks,
Chris
hey chris, sorry for the late response (I just noticed your comment in the moderation)
I agree — it sometimes is also frustrating to us when we have to limit our partners’ creativity due to this law, explain ourselves over and over and end up with angry partners who think we are to blame :/
us being less cautious puts more risk to you as partners as well — first of all we have to respect the law (as a company we can’t just say “oh we don’t like this law so lets ignore it”) and then a range of people appreciate us being cautious since if you get sued, you’ll have to pay *a lot of money* — and you’ll definitely start asking questions .. and btw. we’d still need to explain why we offer some designs e.g. in this country, but not in another one (where some people know this law). see your example with US and EU/German law.
it’s tricky, but of course we’re trying to work on solutions that respect the law and leave a bit more “freedom” to our partners. also, there are small steps with court decisions towards a better understanding of our service, lets see…
btw. a range of partners in Germany just ask companies and brands for a permission to use their design (sometimes this is the easiest way). if you have an approval you can simply send it to us and we’ll publish your design.
cheers,
ami.)
I of course understand the historical context that lead to the fact that Germany has the most strict privacy laws in the world. A current example is the Google Streetmaps / wi-fi data collection scandal, that might affect Google’s operations in Germany.
But I also have to say (and I know alot of partners agree on this) that your “concern” is becoming so big a problem you should consider moving your company to another country for the sake of your customers right to freedom of speech.
The way I see it Spreadshirt provides a publishing platform for its partners – its of course your obligation to make sure you’re not getting sued for copyright infringement, but you also need to govern the freedom of speech.
If you go to spreadshirt.com you will find 1500 facebook related products – if you type in facebook on spreadshirt.net you will find 0. In fact try to type in any company name and the result will be 0. Not only do you reject designs from the Marketplace, you also edit search keywords to meet your “safety standards”.
We as European Citizens also have the right to freedom of speech! I have the right to write “Facebook sucks” on a t-shirt and there’s nothing Facebook can do about it.
Can I sell such a t-shirt and make profit of it? Well thats much more debatable, but for me its a decision to be made by the courts and I frankly find it appalling that you just choose to pre-censor because that’s the easiest solution.
There’s a fine line between censorship and causion – and you are being very cautious.
I think the current problems with partners is founded in your Germany-centric approach to copyright. An example is your guide for motives you cannot accept:
https://www.spreadshirt.co.uk/your-spreadshirt-C2877
If you look under “Unconstitutional” you will find several political symbols and the text: “These designs break the law, some even break fundamental rights. No-go!”. But wait a second – several of these motives are only unconstitutional in Germany, not in Europe, not in the rest of the world. Of course its fair that you don’t want to print such stuff, but then you could at least be better at explaining that you operate out of Germany and therefore is bound by their laws. Afterall you operate in so many countries – you have local offices and so on. I cannot expect people to guess that you are bound by a specific very strict German regulation – you need to explain it to them 🙂