by Paul Alan Levy
Last week, the pre-campaign PAC promoting Hillary Clinton's presidential candidacy, Ready for Hillary, demanded that both Zazzle and CafePress, the rival print-to-order companies that designers use to fill orders for Tshirts and other paraphernalia displaying their designs, stop selling material displaying the following design:
The design, created by Liberty Maniac’s Dan McCall, whose clever parodies of the National Security Agency produced controversial takedowns last year that culminated in an apology from the NSA, is an obvious parody of Ready for Hillary’s own design, playing off the concern that the next presidential election may feature major-party candidates from relatives of former presidents (Bushes and Clintons), as well as a recent study by Martin Gilens and Benjamin Page suggesting that policy-making is increasingly dominated by “powerful business organizations and a small number of affluent Americans.” In a letter to Ready for Hillary this afternoon, we have given the PAC a short deadline to rescind its takedown demand to avoid the need for a lawsuit for a declaratory judgment.
Zazzle and CafePress Are Also Culpable
Although Ready for Hillary bears the main responsibility for the takedown, the spineless response from Zazzle and CafePress is disappointing – both companies removed the design without any apparent consideration for the rights of its customers to comment on prominent political figures through parody. When McCall asked for an explanation, both companies responded with generalities (here are the emails from Zazzle and CafePress). The companies' unwillingness to provide copies of Ready for Hillary’s actual takedown demands prevented McCall from focusing his arguments on the PAC’s actual claims. CafePress simply ignored a request for a copy; Zazzle outright refused on the ground that takedown communications are “confidential” (because caving in to frivolous takedowns is so embarrassing?).
In past years, we have found CafePress to be tougher in its responses to foolish trademark claims, refusing to remove designs and going so far as to bring its own declaratory judgment action against the Republican National Committee when it persisted in claiming that designs using its elephant logo to comment for or against various candidates in the primary, and for or against the Republican Party itself, violated its trademark rights. That both companies have been so supine in their responses to takedown demands as we begin the 2016 presidential election season is a discouraging sign for the vitality of free debate about the major candidates.