Wednesday, June 15, 2016

Response Received from S6 Legal Team, Counter Notice Sent...

Yesterday, I received a response from the Society6 Legal Team to the message I sent regarding the direct request they received for the removal of my original non-derivative artwork "Legion". This is what they said:

S6 Legal Team, June 14, 2:27pm
Hi Richard,

Society6 received a notification from the exclusive licensee of Legion, and that license give this third party the exclusive right to sell merchandise bearing the name, image, or likeness of Legion.

Please understand that you are not the only artist subject to this review process, and we are not stating that your work does or does not infringe copyright or any other intellectual property right.

We take into account a variety of factors before taking action to suspend an image, including the presence of trademarks and other protected elements in the title and description of the work. We also attempt to evaluate potential defenses, including the fair use doctrine. Fair use is an inherently subjective and fact-intensive analysis, and reasonable minds can differ over its application.

Also, even original renderings of protected images can infringe third-party intellectual property rights. Though your illustration, painting or photograph may be creative and not merely duplicative of someone else’s work, if the underlying subject matter is protected, you may not be able to sell merchandise reflecting that subject matter without the owner’s permission. If you believe you have permission from the owner, please provide us with the owner’s written confirmation.

We sincerely value your contribution to Society6 and certainly regret any inconvenience or confusion this may have caused.

Please bear in mind we are unable to provide legal advice as to whether or not simply changing the title of the work or description makes the image in question eligible to be reactivated on the site.

Thank you for you understanding.

S6 Legal Team
After reading through the message from the S6 Legal Team and finding their explanation (such as it is) unsatisfactory, I consulted my attorney, who agreed to compose a counter notice. A signed and scanned copy of the notice was then sent to the Society6 Designated Agent as listed on their "Terms of Service" page. Here is the gist of the notice (I've removed the link and my personal info):

1.      My Content/Product titled Legion was available on Society6, formerly located at (link removed), until its removal on June 10, 2016.

2.      I am the copyright holder of Legion. 

3.      I swear under the penalty of perjury that it is my good faith belief that the Legion was removed and/or disabled as a result of mistake or misidentification of Content/Product to be removed and/or disabled.

4.      I consent to the jurisdiction of the United States District Court for the judicial district in which my address is located.

5.      I will accept service of process from the person who provided the Notice of Claimed Infringement to Society6 or such person’s agent.

Richard Fay
(address removed)
(phone number removed)
(e-mail address removed)
A copy of the notice was also attached to a message added to the support ticket thread.

This all seems ridiculous to me. No one but myself should have the exclusive license to my original non-derivative artwork "Legion". It seems to be a stretch to say that my use of the title "Legion" (a rather general word) for an original non-derivative dark artwork, or anything in my description of that work, is infringing upon the rights held by another. It will be interesting to see what sort of response, if any, I receive from the S6 Legal Team. Right now, I'm at a loss as to figuring out why "Legion" was removed in the first place! Society6 has given me so little information regarding the "whys" and "wherefores" that it's truly a guessing game.

BTW, over on Society6, I just performed a search of artworks entitled "Legion". The results contained several works of various images with that title.

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