December 30, 2005
Keep on Suin'--Crumb v. Amazon
By Eric Goldman
Crumb created the groovy and famous Keep on Truckin' cartoon in the late 1960s. I'm not going to show a copy here to avoid a lawsuit, but you can find the drawing as an exhibit to the complaint, or you can find many versions in color in Google Images (not entirely office-safe...and will Google be sued next?). The drawing is immediately familiar to anyone of my generation or older.
Someone at Amazon thought it would be funny to include the drawing on search pages when Amazon didn't carry the desired product, with a suggestion to keep on lookin'. Cute? I think so (but then again, I wear Birkenstocks). Legal? Probably not. If the drawing was uploaded by a user or vendor, Amazon might be able to claim the 512(c) safe harbor (see Corbis v. Amazon). Otherwise, if an employee or contractor uploaded the drawing, there would be a prima facie case of infringement. At that point, Amazon can try a weak and uncertain fair use defense, or it can open up the checkbook.
Amazon initially chose the latter route (after immediately taking down the drawing), but when 2 years of talks didn't yield a satisfactory number, Crumb pulled the trigger and sued Amazon. It will be interesting to see if this speeds up resolution or leads to a more favorable amount for Crumb.
I think this case reinforces the real risks of Internet copyright infringement. Most people worry about being sued by one of the big copyright owners (movie studios, record labels, book publishers, image archives), but I think those concerns are misdirected. Instead, I worry about the small-time independent copyright producers. As I recently wrote in a comment to Dan Solove's posting entitled "What If Copyright Law Were Strongly Enforced in the Blogosphere?":
the risk of copyright infringement lawsuits from mainstream publishers is relatively low. Instead, the real risk is from the small-time copyright owners--the Kellys or the Perfect 10s of the world. They have a lot less reputation to lose by suing, they are often meticulous about registering their copyrights, they look at lawsuits as a profit-generating strategy, they often overestimate the value of their work, and they don't settle cases easily. As a copyright infringement defendant, I'd MUCH rather face a Corbis or a Getty as the plaintiff than a freelancer plaintiff
This lawsuit may be Exhibit A in support of my argument. Best of luck, Amazon!
One more thing. A lot of people mistakenly believe that copyright infringement can be cured by immediately responding to a takedown request (let's call it the "no harm, no foul" rule). However, as this case illustrates, copyright owners can successfully shake down an infringer for cash even if the infringement is immediately remediated upon notice. Caveat bloggers!
Posted by Eric at December 30, 2005 12:46 PM | Copyright