# Facts vs. Intellectual Property Infringment - MLB



## dbcom (Jan 17, 2007)

I recently had some designs (that I also have a CafePress) removed from Zazzle on grounds of trademark/copyright infringement. I was told that:

"Unfortunately, it appears that your product, does not meet Zazzle Acceptable Content Guidelines. Specifically, your product infringes upon San Francisco Giants and Major League Baseball Properties, Inc.'s intellectual property rights."

The item in question is the same posted at: San Francisco 2010 Game 5 : October Moments

I'm truly baffled by this, and I realize that this isn't a place to get professional legal advice, but did want to get a feel for whether I'm totally out of place here. What I really attempted here was to sell non-copyrightable 'fact' (linescore, date, year, city), and I've steered clear of MLB logos and team names. I've sold the same shirts on CP for years and never had MLB ask CP to remove any of these designs.



Zazzlers have talked about how aggressive Zazzle is in removing anything/everything that hints of infringement, but I honestly feel like I'm in the right here in selling 'facts' not MLB Intellectual Property. A ruling also came out a few years ago that player statistics (facts) are not copyrightable by MLB and hence legal for Fantasy Baseball sites to use for free. A linescore is similar to that of a statistic in that it is a fact.

In my case, selling a historical event/fact without mentioning MLB or the teams or using their logos shouldn't be an infringement, right? I'm not necessarily asking for legal advice, but just a general response to see if I'm way off here.


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## kimura-mma (Jul 26, 2008)

Zazzle has the right to reject content within their guidelines (and obviously, they have the right to modify their guidelines too). So the main issue here isn't whether or not you actually infringed on MLB property, but that your content falls outside of Zazzle's acceptance guidelines. If Zazzle chose to reject your content, then that's the answer. I don't know if they have a procedure where you can argue your point. If they do, then it's up to you on how you want to proceed.

The comparison to fantasy sites using stats isn't exactly apples to apples here. When those sites use statistics, they are providing a service to their users. Basically, they are communicating information similar to how tv and newspapers communicate the news and events. But when you take the same information and print it on a t-shirt, you are creating a salable good which is governed under the Lanham Act. The Lanham Act not only protects registered intellectual property, but also protects against confusingly similar products in the marketplace. So even though you are not using team or league logos, it's obvious what you are intending to do. And that is the basis for an infringement lawsuit (if MLB ever chose to go there). But in this case, it's also the basis for Zazzle's decision to reject your content.

I typically have a very conservative view on these issues. Any time you toe the line of infringement (which you definitely are doing), there are risks involved. At least you only got rejected by Zazzle. It would be worse to be sued by MLB.


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## dbcom (Jan 17, 2007)

Thanks, kimura-mma. That was very insightful and helpful feedback. 

Yet after reading up on the Lanham Act, it appears that it refers to trademarks (ie, a logo) which isn't the case in my design unless it's 'SAN FRANCISCO' that is in question. 'Confusingly similar' marks seems to be a reference to, say, two companies having the same name but selling different products, which again is not the case here. I'm not necessariliy arguing here, and I realize that Zazzle can do whatever they want to keep their marketplace as they'd like. I'm just trying to get a clearer handle on the issue.


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## kimura-mma (Jul 26, 2008)

It requires a license to sell MLB and World Series merchandise. You are attempting to sell it without a license. This is definitely a slippery slope. There is no way you can be 100% risk free from being sued. Because the World Series (even as a generic representation) is something that MLB will go to great lengths to protect.

Based on your current usage, at worst, you are infringing on MLB property. At best, you are creating a product that can be considered confusingly similar (meaning consumers may mistake your shirts for official licensed product).

Either way, if you are sued by MLB you will need to consult an attorney and then determine the best course of action (either stop selling your product or fight MLB in court). Maybe you have a legal leg to stand on in court, maybe you don't. You will need to figure that out when the time comes and actual allegations are made.

But I can say this... MLB absolutely has the right to take action against you for infringement. Whether they are able to substantiate their claims is another story. But more often than not, a simple C&D is all they need to get their way because most people do not attempt to take them on.

As I mentioned, I tend to take an overly conservative approach to this topic. So in my opinion, what you're doing is risky and you could be sued at any time. Maybe that will happen, maybe it won't. But I often like to ask... is the reward really worth the risk?


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## dbcom (Jan 17, 2007)

Thanks again, kimura-mma. I have much to consider moving forward.


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## joeshaul (Mar 1, 2008)

Also keep in mind that just because someone else is getting away with it doesn't mean that you will, or that it should be justified. Zazzle may just not have stumbled upon that one, or had a complaint lodged against it. 

Most companies in regards to copyright issues, piracy, and so on will take down without much investigation because it's not worth their time and effort to go to the next step. Doesn't matter if it's a print place, download place, etc. They'd much rather just be compliant and smile than have to get involved in a lawsuit and track down who "Hornypirate007" is so they can be involved too and then find out that the guy is just a 13 year old kid whose parents set him up the account, and so on.


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## dbcom (Jan 17, 2007)

So coming back to this, I did a bit of research which sheds some light on what is/is not infringement:

ABA Journal - Google Books

specifically on p.62 (top), "...copying raw factual information from...a baseball box score is not infringement, no matter how much money the copier makes."

Obviously this is just coming from a magazine article, but it does present a basis for reproducing 'factual' information, no matter if it is tied to a private entity such as MLB. So if factual information is not copyrightable, how can it be considered as MLB's Intellectual Property?

This notion of 'factual information' not infringing seems common knowledge in legal circles (ie, Google Search "facts are not copyrightable")

I know I can't be infringing on any trademarks simply because I am not using any of MLB's logos/trademarks. It's a generic presentation of bat/glove/year/city. Again, if factual information is not copyrightable, how can it be considered as MLB's Intellectual Property, which Zazzle claims it infringes upon?


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## Rusty44 (Apr 28, 2008)

dbcom said:


> So coming back to this, I did a bit of research which sheds some light on what is/is not infringement:
> 
> ABA Journal - Google Books
> 
> ...


Sounds like it's time to contact an attorney and get all of your questions answered.


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## ChameleonPrints (Apr 7, 2007)

While I personally would agree that it is not infringement... the fact is, It doesn't really matter unless you have enough money to defend yourself against the MLB. They don't have to be right to sue you, and lawsuits are quite expensive. Zazzle is making a business decision to protect themselves against the possibility of a lawsuit.


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## kimura-mma (Jul 26, 2008)

The difference here is that you are reproducing the information on a t-shirt, which is a salable good and governed under the Lanham Act.

MLB has the right to protect their intellectual property and also prevent the sale of confusingly similar products. So even if you're right about the IP, you are still creating a product that could be considered confusingly similar which could lead to legal issues.

It seems that you are trying to find a definitive answer that substantiates you are not infringing. But IP goes way beyond just logos and team names.

I'm not suggesting what you're saying is wrong and what I'm saying is right. I'm just pointing out that IP laws can be interpreted different ways. And that's why IP issues go to court. If MLB catches wind of your shirts, they are going to claim it's infringement and you're going to claim it's not. It will then be up to a judge to decide. Maybe the judge will agree with you, maybe the judge will agree with them.

You seem to be doing the proper research and becoming more familiar with IP issues. But don't let your research fool you into believing that MLB's attorneys will interpret the laws the same way as you. Interpretations are not definitive legal answers. I guarantee you that MLB's attorneys will find a way to interpret the laws in their favor. And they have the resources to tie you up in a legal battle.


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## binki (Jul 16, 2006)

lawyer-up and see if you can beat them back. that is about the only way to handle something like this.


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## dbcom (Jan 17, 2007)

kimura-mma said:


> ... don't let your research fool you into believing that MLB's attorneys will interpret the laws the same way as you. Interpretations are not definitive legal answers. I guarantee you that MLB's attorneys will find a way to interpret the laws in their favor. And they have the resources to tie you up in a legal battle.


yes, I'm definitely aware of this. thanks again.


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## BroJames (Jul 8, 2008)

As I know it.

If you are dealing with a government regulatory body then maybe you have a better chance of defending your "rights" or "privilege". But with a private company and like in the case on hand, zazzle exercising a subjective decision in the name of protecting their interest, I believe your chances are almost nil. Meaning, they have that prerogative.

A letter for clarification won;t hurt but I think it is better to just charge it to experience.



kimura-mma said:


> ...
> I'm not suggesting what you're saying is wrong and what I'm saying is right. I'm just pointing out that IP laws can be interpreted different ways. And that's why IP issues go to court. ...
> 
> ...But don't let your research fool you into believing that MLB's attorneys will interpret the laws the same way as you. Interpretations are not definitive legal answers. *I guarantee you that MLB's attorneys will find a way to interpret the laws in their favor. *And they have the resources to tie you up in a legal battle.


Sometimes, lawyers are brought in not to win court battles but to discourage others from following suit.


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## dbcom (Jan 17, 2007)

Thanks, BroJames. I did end up sending a set of letters explaining my position to Zazzle and don't necessariliy expect it to change their minds. I did think that the agent failed to understand the situation as I've researched it. In fact, further information can be found here (FEIST PUBS., INC. V. RURAL TEL. SVC. CO., INC., 499 U. S. 340 :: Volume 499 :: 1991 :: US Supreme Court Cases from Justia & Oyez), which actually makes a point that the design is actually copyrighted, NOT THE FACTS--WHICH AREN'T COPYRIGHTABLE, but the layout holding the facts. In any case, these shirts aren't much of a sell and it looks like CP may even be removing many of these non-selling items with their latest user agreement.


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## kimura-mma (Jul 26, 2008)

dbcom said:


> I did end up sending a set of letters explaining my position to Zazzle and don't necessariliy expect it to change their minds. I did think that the agent failed to understand the situation as I've researched it.


Definitely keep us posted if/when they respond. It would be interesting to hear more about the reasoning behind their decision.



dbcom said:


> In fact, further information can be found here... which actually makes a point that the design is actually copyrighted, NOT THE FACTS--WHICH AREN'T COPYRIGHTABLE, but the layout holding the facts.


I still don't quite see the apples to apples comparison to your situation. I think the licensing issue is bigger than the use of the actual statistics.



dbcom said:


> In any case, these shirts aren't much of a sell and it looks like CP may even be removing many of these non-selling items with their latest user agreement.


This pretty much sums it up. If you're not really selling much, then the reward just isn't worth the risk (or even the legal hassle of fighting the copyright issue).


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## BroJames (Jul 8, 2008)

kimura-mma said:


> ...
> This pretty much sums it up. If you're not really selling much, then the reward just isn't worth the risk (or even the legal hassle of fighting the copyright issue).


Very true. But I do hope they still reply for future guidance


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