Legal Issues with Zazzle
Posted: Wednesday, November 13, 2019 2:30:03 PM
I know there’s a million threads about the problems with Zazzle’s new inventions. But I hope it’s OK to start a new thread to look at some of the legal issues that people seem to overlook. First of all, the tendency is for some people to say that if we keep our stores open after the 22nd, we automatically accept the new terms. This isn’t exactly true. Nowhere in the original terms, the legally binding contract that we agreed to, is there anything that says that Zazzle can make us accept new terms that violate our copyrights and the copyrights of others, without our FORMAL agreement of those new terms, or we will be forced to close our stores.
Secondly, when sites make new license agreements, the OLD agreement still needs to apply to those items that were listed BEFORE the changes took place. We listed those items under the original terms, so Zazzle can’t legally change that contract that was already agreed upon when we made those listings. That’s why, for example, when the graphics sites change their licensing terms, everything we’ve already purchased remains under the old license. Even if we agree to the new terms going forward, they can’t legally apply to the old items. Therefore Zazzle needs to give us an opt-out for our existing products. The terms under which we agreed to post our designs are: “If you select the "customizable" option, you also agree that Zazzle and visitors to the Site ("Users") may make changes to the Content for the purposes of creating and ordering Products. You retain all copyright and other intellectual property rights in your Design.” There is nothing in the User Agreement or Designer Agreement that states that changes contradicting the original agreement are retroactive.
As far as sublicensing purchased graphics, which is against the terms of use, Zazzle can’t expect their old “collaboration clause” to apply to the new collaboration model. Collaboration for manufacturing purposes is totally different than allowing other users to sublicense, and claim the copyrights on, the graphics for the purposes of making new designs. Since we didn’t FORMALLY sign an agreement to that effect, all legal issues springing from Zazzle’s unethical exploitation of a possible gray area, should fall on them, not on us. At the time our designs were listed, we were not in violation of the licensing terms of those sites, and Zazzle can’t change the rules on existing designs to force us to be in violation.
Furthermore, Zazzle lied to us, and said that the new terms will not go into effect until November 22, but if you look at the agreement page, it says “Effective October 9.” And these new terms include collaboration. They can’t legally bind us to something that secretly went into effect before they told us about it!
I think a legal argument could be made for the definition of “Collaboration.” The word implies that all parties are in agreement to collaborate on a particular design. If we are unable to agree or opt out, then it is NOT a collaboration, and the “initiators” shouldn’t be able to claim our designs as their own. A collaboration needs all parties to agree to give up their rights for that particular project.
I really think Zazzle has ulterior motives with this move. There is no valid reason why they can’t just allow an opt-out, or at least allow us to change customizable products to non-customizable. And why are they flat out IGNORING all our valid concerns?
Posted: Wednesday, November 13, 2019 2:41:35 PM
If that were/is the case one court case would cause an avalanche of litigation. Is this going to be a case of "who blinks first?"
Posted: Wednesday, November 13, 2019 4:31:31 PM
Quote:
Secondly, when sites make new license agreements, the OLD agreement still needs to apply to those items that were listed BEFORE the changes took place. We listed those items under the original terms, so Zazzle can’t legally change that contract that was already agreed upon when we made those listings



Connie
THANK YOU!! YES I have been thinking this and saying this over and over....... I guess not expressing it as clearly as you have. THis is what is making me so crazy over this entire thing....
why Zazz didn't just create a separate link or tab create and collaborate in the first place and just let people go to that place to upload and participate if they CHOOSE rather than lumping existing marketplace into this collaborating nightmare is beyond me.

I too have wondered how legally they are able "to just change the rules" in the middle of the game. Very unfair to be targeting our listings after they are already in the marketplace - forcing us to re-do over sure easy to say but then losing our stats, our sales, our visibility in the marketplace.
Posted: Wednesday, November 13, 2019 4:35:53 PM
This is a very valid point about the new Terms suddenly being retroactive. I can't recall any website I've ever interacted in any way with doing that. I am not even sure it is legal as the change in the Agreement is dare I say vital and not at all minor. I believe, when an agreement or contract changes that drastically, it cannot replace the deal made under old agreement.

Thank you for bringing it up!
Posted: Wednesday, November 13, 2019 4:38:05 PM
WittyBetty wrote:
This is a very valid point about the new Terms suddenly being retroactive. I can't recall any website I've ever interacted in any way with doing that. I am not even sure it is legal as the change in the Agreement is dare I say vital and not at all minor. I believe, when an agreement or contract changes that drastically, it cannot replace the deal made under old agreement.

Thank you for bringing it up!


Makes sense to me!! Just wonder if that would be the date the design was first uploaded or the date when the product was created with that design?
Posted: Wednesday, November 13, 2019 4:41:12 PM
Very well written and explained, Connie.

Thank you.
Posted: Wednesday, November 13, 2019 4:42:34 PM
Good point about the retroactive aspect of the terms. I would love to hear a lawyers input about the legality of it.

The big problem I see is that dang clause about agreeing to the terms just by using the site.

ETA: the question is... how binding is that?
Posted: Wednesday, November 13, 2019 4:50:05 PM
🌼Shelli Fitzpatrick wrote:
Good point about the retroactive aspect of the terms. I would love to hear a lawyers input about the legality of it.

The big problem I see is that dang clause about agreeing to the terms just by using the site.



Yeah and I have funds in pending state with some cleared that I won't get if I close. I'm waiting for James C update and hoping it will be tomorrow.
Posted: Wednesday, November 13, 2019 5:35:20 PM
Connie wrote:
And why are they flat out IGNORING all our valid concerns?

There's a couple of possible scenarios for why they've greeted our concerns with radio silence. One is that they goofed and are just now realizing the terrible mistake they made and are brainstorming on how to achieve their goal of collaboration without violating copyright laws or our rights as designers and are making changes as we speak.

The other more likely scenario is that it's all carved in stone and they've already factored in the anger over this change and the loss of many designers as a result and are just letting us blow off steam here before they continue with their master plan. If it's the latter then they've simply failed to learn from history; specifically the history that brought them success in the first place.

What I don't think they get, and I hate to keep bringing up Cafepress but I can't deny the analogies any longer, is that burning your online workforce for fuel might give you a short term boost but it also creates tremendous dissent, and that leads to a negative word of mouth and a lack of involvement that can have a ripple effect for everyone involved.

Cafepress began to decline soon after the royalty cap because in alienating their designers and inspiring them to look elsewhere, they essentially killed off their external marketing department, which was us. Before the royalty freeze, designers were linking to each other's shops and telling everyone they met about Cafepress and getting them involved, but after getting burned with the royalty cap, designers began telling friends and family about what happened and eventually Cafepress earned themselves a terrible reputation and gradually lost most of the traffic designers were sending.

Zazzle management has obviously forgotten or never learned this lesson, even though they grew to number one due in no small part to Cafepress and the mass migration away from their platform over to Zazzle's, and if designer's feel that they've been cheated here and treated dismissively, which is what these latest changes seem to represent, then Zazzle could be facing an exodus of their own in the not too distant future if they choose not to learn from the past mistakes of others and proceed to trample us in their pursuit of profits.

Posted: Wednesday, November 13, 2019 5:48:00 PM
^That.

Hoping it's option one; expecting it's option two.

Guessing we will get ineffective explanations of intent without meaningful changes. That leads us down the option two path.
Posted: Wednesday, November 13, 2019 5:57:07 PM
🌼Shelli Fitzpatrick wrote:
Good point about the retroactive aspect of the terms. I would love to hear a lawyers input about the legality of it.

The big problem I see is that dang clause about agreeing to the terms just by using the site.

ETA: the question is... how binding is that?

Even if we agree to the new terms just by using the site, it can still only affect things going forward, not retroactively. The content we submitted in the past, was submitted under the old contract, with those specific terms. We never agreed that those terms could be changed retroactively.
Posted: Wednesday, November 13, 2019 6:22:20 PM
Connie wrote:
🌼Shelli Fitzpatrick wrote:
Good point about the retroactive aspect of the terms. I would love to hear a lawyers input about the legality of it.

The big problem I see is that dang clause about agreeing to the terms just by using the site.

ETA: the question is... how binding is that?

Even if we agree to the new terms just by using the site, it can still only affect things going forward, not retroactively. The content we submitted in the past, was submitted under the old contract, with those specific terms. We never agreed that those terms could be changed retroactively.


Okay, but what to do about it? At this point I would never trust them with my original art again anyway.
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