Should I appeal this DMCA takedown?

MakerWorld
1

I made this parody design after seeing someone on a FB group post about Bass Pro Shops taking down their parody design. I guess they took the bait, because this morning my design was taken down.

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What are the consequences of having a copyright strike on my account? If I win an appeal would that negate any consequences? Looking at what I would need to do to appeal, I’m not sure if it’s worth the trouble. I never made any points with this, but it’s a new design. I really only care about how this may impact my standing with MakerWorld.

2

I would not appeal it. Even though the DMCA doesn’t cover trademarks, they probably used the same process.

I’ll leave it up to you to google if there is a parody defense in trademark law.

These also might be of interest to you, with emphasis on the word “indemnify”:

  1. User Content and User License Terms

The User is fully responsible for all of the User Content that the User uploads to and publishes through MakerWorld. The User shall not post, upload, publish, submit or transmit any User Content (including any links thereto) that infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or any duty of confidentiality that you owe to another party. By uploading the User Content, the User agrees to indemnify and hold MakerWorld harmless for any allegations and/or findings of infringement of IP Rights and/or any damages incurred therefrom.

  1. Indemnity

Except to the extent prohibited by law, the User agrees to defend, indemnify, and hold MakerWorld, its affiliates, and their respective, directors, officers, employees, , agents, contractors, third-party service providers, and licensors (collectively, “MakerWorld Entities”) harmless from and against any claim or demand made by any third party, and any related liability, damage, loss, and expense (including costs and attorneys’ fees) due to, arising out of, or in connection with: (a) the User’s use of the Services, (b) the User’s violation of the Terms of Use, (c) the User’s violation of any applicable laws or regulations, and/or (d) the User’s User Content. MakerWorld reserves the right to control the defense of any matter for which the User is required to indemnify any of the MakerWorld Entities, and the User agrees to cooperate with the defense of such claims.

3

[I’m not a lawyer]
Usually, trademarks do not include protection against parodies, unless there’s an obvious risk that someone will confuse the parody with the real thing or the creator of the parody is trying to market the parody as a form of good (there are some other factors that play in as well, but in your case I don’t think they apply).

However, social media platforms often do not want to deal with the hassle of sorting out what is parody and what is not, and therefore play it safe.

Finally, depending on where the social media platform is based, other standards may apply.
[/still not a lawyer]

3 Likes
4

Maybe change the fish iconography enough that it won’t be immediately interpreted as a copy of the original?

5

They did a take down of a design for Karp Pro Shops. It doesn’t seem to matter how much you differentiate it from the original. They are going to go after any parody design. Oddly enough, there’s a light box model on MW that does clearly infringe on Bass Pro Shops that hasn’t been removed.

6

IANAL but Bass Pro owns the trademark and it’s within their rights to protect their brand how they see fit. A well made light box with an exact replica of the Bass Pro Shops logo could receive the same takedown request but if the model isn’t damaging their brand and only helps promote it further then most companies will turn a blind eye. A parody logo might seem like it’s infringing less since you’ve modified the art but anything clearly resembling the original logo can be proven in court and some companies really don’t like anything that hurts their brand so generally it’s not a battle you want to fight.

1 Like
7

Here’s a good example from recent history where something marginally infringed on someone else’s IP.

1 Like
8

With a takedown notice you know they are watching and someone likely has your model noted on a whiteboard. If they ever decide to sue, more than likely (not a lawyer though) they will include legal expenses as they seek damages. That can get expensive quick.

I wouldn’t push my luck. That logo infringes (IMO) and it might be in your best interests to pull it ASAP and cross your fingers that’s where it all ends. Once the legal wheels start turning things can get expensive.

9

Since I can’t find out if winning an appeal would remove the “rule violation”, I don’t think I’ll appeal the takedown. The only consequence of having the rule violation on my account that I can see is that it would prevent me from entering the commercial licensing program. You need to have no rule violations for 90 days prior to signing up for that program. I don’t have enough followers for that, and I’m not sure I’d want to go that route for selling files anyways.

10

I still wonder about the WHY…
If you already knew they take down the models why post one, knowing it will mean trouble ?

Let me give you an extreme from my past >
A friend wanted a sticker design for his car.
Having no clue about how to use a computer and even less about designing things I whacked it up for as an SVG file that he could take to some vinyl cutting shop and then in any size he likes.
Problem was the distance and that I made a few different designs in terms of font used and such.
So I uploaded the files to my Google drive and since no one ever checks I did not bother to mark it as private.
Within less than three hours and without any downloads I had an Email informing about my sever violations of the T’s & C’s…
Mind you the claim did not come directly from Google, they claimed they got informed about the offensive content despite no one having downloaded the files.
Of course I appealed once I realise I can no longer upload anything to my Google drive - all I got was a pop up telling me that my account is under investigation.
What was all the fuzz about?
The word ‘fu(k!ng’ within the text, as in ‘and we speak f… English’.
Took only an endless amount of Email exchanges to get my account restrictions removed but also resulted in getting another strike.
Because I used the outlines of an AU map - which Google claimed originated from their own protected file collections.
I showed the entire process of the generation in pics but it did not help…

Long story short - you can’t win against the big ones out there…
Alphabet controls enough to do whatever they like same for Meta and Co.
It is not even about protection something, well, unless you consider power and control as worthy to protect.
Problem for users is that most rely on hosting services.
If they won’t give you a direct strike they will forward any strike against you and through that you get a compromised account.
Quite a bummer if used your real details to create the account because you wanted to do good - a little joke, s a fun upload, some out of context post is all it takes these days…
Isn’t it funny how easy we can offend these days and how it is even easier to get punished for something no one cared about just 15 years ago ? :wink: