Archer vs Escher

"Life of an Artist" 1999

Over the years, I've used Zazzle to provide products with my artwork on them that I normally could not afford to do. In the past couple years, my best selling image became T-Shirts featuring my image "Life of an Artist"(right) depicting a hand drawing a snake that is biting the hand that draws it.  The description for the image was as follows ...

"This piece was inspired by M.C. Escher and depicts the conflict within an artist to create, which is an integral part of an artists life, but at the same time, the road of an artist is a difficult one. The snake represents the bite of all the obstacles that prevent an artist from being able to support oneself with their art, keeping an artist the cliché of a starving artist. To give up art for money would be death to the soul, yet without money the artists cannot create. The catch 22 of being an artist, doomed to continue creating and continue starving."

This becomes rather ironic as earlier this week, Zazzle took down two of my best sellers, this one and "Fairy Fuzzy", which is a picture of my cat, Prince, with fairy wings, done in 2005 when he was still a young kitty and not the buddha bellied buddy that he is today.

"Fairy Fuzzy" 2005

Considering I have had multiple stalkers and harassers, that was my first inclination, to think that it was one of them when I received this message from Zazzle.

"Design contains an image or text that may infringe on intellectual property rights. We have been contacted by the intellectual property right holder and we will be removing your product from Zazzle’s Marketplace due to infringement claims."

Considering that both images are original creations of my own, I was perplexed. No one else held any copyright to these images, and I thought that it had to be one of harassers, because earlier that day I got more exposure than I have received in a long time. Jamie and Adam Posts on Facebook, shared my image that I did of them Steampunked. They are well aware of this image, because in 2010 I won the Superfan Sweepstakes that paid my way to Comic Con San Diego where I got to meet them in person. I steampunked the build team as well, and Grant shared that image. When I met them all in person, I gave them the originals, and later asked if they minded me making prints, to which I got an instant confirmation of yes from Grant and Kari. Also Jenna Busch bought my Athena necklace (which she loves) at Comic Con, and mentioned it in  her show the same day.

So the moment that I got noticed for my art, I also got attacked.  When I called Zazzle about it, I waited on the phone for 30 minutes to be told they couldn't do anything, and I should email them, which I had already done without response. When I finally got the reply, it was a vague form letter that showed that they never even considered the images in question.

"Unfortunately, it appears that your product did not meet Zazzle’s Acceptable Content Guidelines. Specifically, your product contained content which infringes upon the intellectual property rights of the M.C. Escher Foundation and The M.C. Escher Company.

Zazzle has been contacted by representatives from the M.C. Escher Foundation and The M.C. Escher Company, B.V., www.mcescher.com, and at their request, to remove products which infringe upon their rights from the Zazzle Marketplace.

In this instance, the product contained search tags or descriptions that references M.C. Escher."

That's right ... my original work was removed because of the SEARCH TAGS.

In a way, I was relieved that it was not one of my stalkers, but at the same time, it seemed that Zazzle was not used to people questioning things. While Zazzle's terms of service gives them the right to decide in these situations, even if they didn't even take a moment to realize that the tag on the second image was because of AUTOFILL! 

Zazzle only requested that I resubmit without those tags, which ate up a day of work that I needed for other projects that I was not able to work on, because of this issue, not to mention losing sales which I have a couple a day of that shirt, for the days that it was down. Not to mention that I had suddenly gotten for more promotion than I've had in a long time, ultimately cutting out several potential sales.

There are SEVERAL things wrong with the Escher Foundation doing this. 

1. The Ninth Circuit court, and the Supreme court have continually held that using Trademarks as a description is fair use. And specifically ruled that meta-tags are fair use.

2. M.C. Escher died in 1972. His heirs sold any rights to The M.C. Escher foundation long ago, so this is a business profiting on this with no association with Escher's actual bloodline.

3. This is the kicker. The M.C. Escher Foundation is based in the Netherlands. Their trademark was cancelled in the United States years ago, and his artwork actually falls under Public Domain.

4. You cannot copyright a STYLE! If you could, no one could even do stick figures. Apparently the Escher Foundation has also gone after other artists who have done original artwork with an oscillating pattern. While Escher made it popular, he did not invent it.

5. The artwork itself is completely original to me, and they have no right to impede my business for a search tag which in no way infringes on their Intellectual Property.

6. M.C. Escher is not Voldemort or "The-Artist-Who-Must-Not-Be-Named". Mentioning being inspired by Escher in a description is not an infringement. It is not illegal to be inspired by someone.

The Irony of the whole situation is that the image that started this was about how hard it is to make it as an artist, a sentiment that Escher himself would probably have appreciated. There are always people wanting to ride on the coat tails of others and profit off a talent they do not possess. These leaches have a habit of killing the golden goose when they get greedy, and make no mistake, this is exactly what has happened here. 

We are taking legal action in this case, and I hope that in the interest of artists everywhere, that we can raise the awareness that search tags are fair use and a common marketing practice. They are not an infringement, and to harass starving artists in such situations is nothing more than bullying smaller artists trying to make it.